David Shillcutt, Senior Counsel in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Law360, in “3 Takeaways from Biden's Mental Health Parity Proposal,” by Kellie Mejdrich. (Read the full version – subscription required.)
Following is an excerpt:
The Biden administration's sweeping behavioral health policy rollout Tuesday provided employer group health plans with crucial new information on what they must do to comply with laws restricting coverage limitations on mental health and substance use disorder treatments, benefits attorneys say.
Taking center stage Tuesday were 395 pages of proposed rules from the U.S. Department of Labor, the U.S. Department of the Treasury, and the U.S. Department of Health and Human Services cracking down on how plans can impose so-called nonquantitative treatment limits on coverage for behavioral health. Nonquantitative limits describe ways that plans restrict health care coverage that aren't easily countable, such as requiring prior authorization or concurrent review, where a patient is evaluated for coverage while hospitalized or admitted to an inpatient facility.
The proposed rules outline detailed data collection and evaluation requirements that plans must undertake in order to demonstrate to regulators that they're complying with federal mental health parity laws. The plans are required to compare their nonquantitative treatment limitations on behavioral health care with treatment limitations in other contexts, such as medical or surgical benefits. The rules also cover how plans have to report the results of these comparative analyses to state and federal government agencies, as well as individual plan participants.
Plans need to heed other information from Tuesday's release beyond the rules, attorneys say, including technical guidance and a report to Congress where the agencies for the first time named certain out-of-compliance plans. …
Managed Care under the Microscope
Attorneys also highlighted that the proposed regulations outline significant new requirements on how plans have to justify treatment limitations used to control costs and better direct limited plan resources, often referred to as managed care or utilization management.
The way the proposed rules accomplish that is complicated — David Shillcutt, senior counsel at Epstein Becker Green, pointed out that the proposal involves 50 pages of regulation per agency, for each of the three involved.
Shillcutt and other attorneys advising employer health plans and issuers on parity laws characterized the proposal overall as a wide-ranging set of new requirements on health plans that could change how limits on coverage have been used to control costs.
The proposed rules said plans might incur costs to come into compliance with the new requirements and requested comment on the cost impact. The agencies also said they expect that the proposed changes would result in expanded coverage of mental health and substance use disorder benefits, but it is possible plans would instead reduce coverage for medical and surgical benefits by imposing the types of limitations they apply on the behavioral health side.
"It is a culmination of what I think is the most sweeping expansion of regulatory power in managed health care since the advent of managed care," Shillcutt said, adding he expects that plans will need additional staff to implement the proposed changes.
"It effectively creates a presumption of noncompliance that plans have to rebut through the careful documentation of the evidence that they use to support nearly every decision that they make in designing their managed care strategies," Shillcutt said.
