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Volume 13 Number 47 News: Mental Health Business representatives and mental health parity advocates are cautiously optimistic the House and Senate will compromise on mental health parity legislation (S. 558, H.R. 1424) this year, despite significant differences between the two bills. Business representatives and mental health parity advocates say passage March 5 of mental health parity legislation in the House (No. 44 HCDR 3/6/08 a0b6d7y5c7), along with Senate passage of legislation last year, has given significant momentum to an issue that has languished in Congress for many years. Adding to the urgency to reach a compromise this year is the impending retirement of key sponsors of the Senate and House bills, Sen. Pete V. Domenici (R-N.M) and Rep. Jim Ramstad (R-Minn.), respectively, business representatives and advocacy group officials say. Despite likely difficult negotiations between the House and Senate over several key differences between the two bills, business and parity advocates say there is a much better than even chance Congress will approve parity legislation this year and a bill will be signed into law by President Bush. "We're very, very close in terms of getting this thing over the finish line," David L. Shern, president of the advocacy group Mental Health America, told BNA March 7. Under mental health parity, health plans offering mental health coverage would have to provide the same benefits for mental illness as they do for other medical conditions. Ongoing Negotiations House and Senate discussions about parity legislation have taken place for several months, prior to passage of the House bill. But Pamela Greenberg, chairwoman of the Coalition for Fairness in Mental Illness Coverage, told BNA March 7 the talks to date have not focused on a potential compromise agreement. "I don't see these discussions as easy," she said. "We know what the issues are, but in terms of some potential areas of agreement and what that would look like, that'll be pretty much new discussion." The coalition, composed of health care providers, parity advocacy groups, and other stakeholders, supports S. 558 and has not taken a stance on H.R. 1424. Negotiators also will have to keep in mind the views of the White House, which supports S. 558 and opposes H.R. 1424. Both bills would require health plans offering mental health coverage to provide the same benefits for mental illness as they do for other medical conditions. Employers with fewer than 50 workers would be exempt under the bills. While the bills aspire to the same outcome--ending discrimination against mental health treatment in insurance coverage--there are several key differences between them that are likely to be the focus of House and Senate negotiators. Opposition to DSM-IV Provision Negotiations are expected to focus on a provision in the House bill requiring employers to cover all illnesses listed in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV); medical management issues; out-of-network coverage, and an issue involving the Employee Retirement Income Security Act and multi-state employers, E. Neil Trautwein, vice president at the National Retail Federation, told BNA March 7. Trautwein and representatives of other business groups insist that, while a compromise between the House and Senate is possible, a final bill including the DSM-IV provisions will be opposed by the business community and will not pass the Senate. The provision is absent in S. 558. Compromises are possible on the other provisions likely to be the subject of the House/Senate talks, however, Trautwein said. The DSM-IV provision is "kind of the Hindenburg of the debate," Trautwein said, referring to the German airship that crashed and burned in New Jersey in 1937. Business groups say they oppose H.R. 1424 because it would impose a broad benefit mandate via the DSM-IV, while House lawmakers and those supporting H.R. 1424 say the DSM-IV requirement would help ensure true parity is achieved. Other Hurdles Trautwein told BNA the provision is likely to be the biggest sticking point in talks between the House and Senate. But he added that a compromise bill without the DSM-IV provision, but keeping the House provisions on medical management, ERISA, and out-of-network coverage, also would be opposed by business. "We really feel we worked hard with the Senate and came up with a principled position," he said. "But we are already out in no-man's land and the House frankly drove their bill as far as they could under the House rules and it's time for them to come back to reality." Business groups and some parity advocacy organizations worked closely with Democrats and Republicans in the Senate in crafting S. 558. Trautwein said the House DSM-IV provision is bad policy and could lead to a conflict of interest, since the manual is produced by the American Psychiatric Association. 'Horrible Precedent.' "It's a horrible, horrible precedent to take the professional manual and import it lock, stock, and barrel into benefit policy," Trautwein said, adding the law would have to be updated as the DSM-IV is revised. "At the very least, is creates potential for litigation" about what is covered by health plans, he added. But Shern of Mental Health America called criticism of the DSM-IV provision "a red herring" because what controls coverage are medical necessity determinations by health plans. "Really what controls in terms of treatments in all these plans are definitions of medical necessity and then the relationship of those to the evidentiary base for the treatment of conditions," Shern said. "In some sense, that's what we should focus on." "So I'm hopeful we can reach a meeting of the minds about the fact that what's most important is that these disorders be included as comprehensively as possible, but within the context of reasonable definitions of medical management for medical necessity," he added. Shern said including coverage of DSM-IV will not be a "budget buster" for plans, noting that mental health parity coverage use suffers from underutilization, not overutilization. Alexa Eggleston, director of public policy at the National Council for Community Behavioral Healthcare, said that if the House DSM-IV provision is dropped in House/Senate talks, negotiators should ensure that "as many of the more serious illnesses as possible" are covered. Medical Management Medical management also will be an issue in the talks, Trautwein told BNA. He said the House bill is silent on the issue of allowing health plans to use their own medical management and review criteria, although backers of H.R. 1424 say the bill allows plans to use their own medical management and utilization and review criteria. The Senate bill stipulates that plans be able to use their own medical management and review critieria. Trautwein said a compromise could involve adopting language that falls between that in a 1996 parity law and the Senate bill. The House bill also requires plans to disclose medical necessity provisions upon request to consumers and providers, while the Senate bill does not. A mental health parity advocate told BNA that the Senate could cede this issue to the House in talks to reach agreement on the broader medical necessity issue since most plans already provide medical necessity information to consumers. Another issue to be resolved between the two chambers is out-of-network coverage. The House bill provides for out-of-network benefits for mental health coverage if out-of-network benefits are offered for other surgical and medical conditions. The Senate bill requires parity for out-of-network mental health coverage only if a plan offers out-of-network mental health care coverage. Trautwein said the House provision is unacceptable to business. "The House goes beyond parity to mandate the coverage, and that's a key difference and that's why it's unacceptable to us." Possible Compromise Trautwein said compromise language will be difficult to produce for this provision. But he said a possible solution would be to allow out-of-network coverage if the out-of-network provider agrees to accept plan reimbursement and agrees to a treatment plan. But Trautwein said out-of-network providers are likely to balk at such language because it would result in lower reimbursement for them. "The question is do we reach the parity goal or do we give providers free rein," he told BNA. Another issue involving an ERISA provision likely will be quickly dropped from the House bill, Trautwein said. Under the House bill, employers operating in more than one state could be faced with different rules for mental health parity coverage, he said. Lawmakers also must decide how to pay for legislation. The estimated cost of the House bill is $4.3 billion, to be paid for by a combination of spending reductions in Medicare and Medicaid. Offsets for the costs of the Senate bill have not yet been specified.
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