Mental Health Parity: Disclosure of information is necessary says NHeLP in friend of the court brief

By: Elizabeth Edwards and Abigail Coursolle

The fight for access to mental health and substance use disorder services (MH/SUDs) continues to run into barriers. The law requires MH/SUDS to be covered similarly to medical services; this is known as behavioral health parity. Parity requires an evaluation of both quantitative and non-quantitative treatment limitations (NQTLs).

Quantitative limitations are relatively straightforward, like visit limits or require co-pay amounts. NQTLs are a bit harder to identify as they include whether a person is required to get prior approval for certain mental health services but not for substantially similar physical health services.

Parity violations based on non-quantitative treatment limitations are one the more predominant areas of noncompliance because the more obvious quantitative limits, like visit limits, have largely been addressed.

Over the last two decades, Congress has repeatedly attempted to level the playing field for over 60 million people in the U.S. with a need for MH/SUDs, and the one in six children with a developmental disability that are also protected by parity. Most health plans are required to follow parity, including Medicaid managed care. Yet health coverage programs continue to change their policies and practices to evade their obligation to provide people with necessary MH/SUDS.

Last month, NHeLP along with the Autism Legal Resource Center and eight other organizations filed an amicus brief in the First Circuit Court of Appeals in N.R. v. Raytheon to address one of these barriers: the failure of insurance plans to fully disclose required information about services and limitations on those services.

In N.R. v. Raytheon, the parents of five-year old N.R. sued his health insurance plan for refusing to provide speech therapy services for his autism spectrum disorder because the plan excludes “non-restorative speech therapy services.” The suit also claims that the plan illegally refused to provide N.R. or his attorney information about its parity practices as required by law, including what other “non-restorative” services are not covered or when such services may be covered.

Instead, the plan simply said that it was following the law, without providing information that would show whether that was true. The District Court dismissed N.R.’s case based on his failure to provide sufficient detail to support his claims, despite that one of N.R.’s claims was the plan’s failure to provide the requested information.

In order to enforce parity, a person must first be able to identify that their plan does not provide MH/SUDs in parity with medical/surgical (M/S) benefits. For example, a person may believe there are more barriers in getting MH/SUDS compared to M/S services, but they cannot know if this is true unless they can get information from the plan about both MH/SUDs and M/S benefits and the quantitative and non-quantitative treatment limitations.

The obligations of plans to disclose such information is clear both in the parity regulations and federal guidance (and here). Recently, the federal parity self-compliance toolkit reiterated the broad range of information that should be provided to individuals upon request, including the medical necessity criteria used regarding a MH/SUD service and the comparative M/S service, as well as documents from the plan with information about the processes, strategies, evidentiary standards, and other factors used to apply to a NQTL. The disclosure requirement demands more of health insurance plans than just simple, overarching statements about a service being covered or not.

In the amicus brief filed in support of the plaintiffs in N.R. v. Raytheon, NHeLP and the other amici argue that:

Disclosure of information by plans is essential to identifying and addressing ongoing harmful parity violations;
Congress has repeatedly recognized that disclosure is critical to enforcement
failure to identify and enforce parity noncompliance harms people who need care;
Disclosure of all factors used in a health plans decision to offer or limit a service is particularly vital for evaluating parity for nonquantitative treatment limitations; and
Required disclosures must be sufficiently transparent and informative to identify parity issues.

The brief also addresses the District Court’s decision to dismiss the plaintiff’s claims because they did not sufficiently show a lack of parity when the plaintiff’s claims included an allegation that the health plan refused to disclose the requested information to assess parity.

The amici argued that such a result unfairly shifted the burden of proving parity to insurance beneficiaries. They also highlighted only allowing individuals to bring a parity enforcement action if they would prove parity noncompliance without actually being able to access the necessary information to provide such proof would create systemic problems in parity compliance.

NHeLP will continue to monitor this case and similar parity cases.

You can read all the blogs in this series by clicking the links below: