Substance Use Disorder Insurance Benefits: a Survey of State Benchmark Plans

• Publication year: 2022

52 Creighton L. Rev. 401. SUBSTANCE USE DISORDER INSURANCE BENEFITS: A SURVEY OF STATE BENCHMARK PLANS

SUBSTANCE USE DISORDER INSURANCE BENEFITS: A SURVEY OF STATE BENCHMARK PLANS

STACEY A. TOVINO ^[*]

"Thank you so much for the generous introduction and thank you for the opportunity to be here today. I am so impressed by the incredible Health Law Program that Dr. Kelly Dineen has built in such a short amount of time ^[1] and it is an honor for me to be able to participate in this symposium. Thank you again for the opportunity to be here.

I was so excited when I learned that the focus of this symposium was 'Inequities and Injustice in Health Care' because a good portion of my scholarly work has focused on inequities and injustices in the context of health insurance. ^[2] In my time today, I would like to present the results of my latest research project-a survey of state benchmark health plan coverage of substance use disorder treatments and services, including treatments and services for opioid use disorder. ^[3] As I will explain, mental health insurance inequities and injustices remain, even after the implementation of President Obama's Affordable Care Act ("ACA"), and these inequities and injustices could get worse in the near future if the December 14, 2018, opinion of the United States District Court for the Northern District of Texas striking down the entire ACA ^[4] is affirmed by the United States Court of Appeals for the Fifth Circuit and/or the U.S. Supreme Court, as appropriate.

Before I present my survey results, let me provide some background information regarding mental health insurance benefit disparities in the United States. Historically, both public health care programs, including Medicare and Medicaid, as well as private health insurers distinguished between physical and mental disorders and provided inferior insurance benefits to individuals with conditions that could be classified as mental, such as major depression, bipolar disorder, schizophrenia, alchool use disorder, and the substance use disorders, as compared to conditions traditionally classified as physical, such as cancer, a broken arm, or high blood pressure. ^[5] Examples of these mental health insurance benefit disparities included the refusal by some health plans to cover any treatments or services provided for anyone who could be considered to have a mental, emotional, psychiatric, psychological, nervous, or similar condition, such as major depression, bipolar disorder, schizophrenia, alcohol use disorder, or one of the substance use disorders. ^[6]

Even when health plans voluntarily covered mental health and substance use disorder services, there were still noticable injustices and inequities. Historically, they tended to impose lower lifetime and annual spending limits, lower numbers of covered inpatient days, lower numbers of covered outpatient visits, higher deductibles, higher copayments, higher coinsurance amounts, more stringent medical necessity requirements, most frequently applied prior authorization requirements, and more stringent experimental or investigative exclusions on those offered mental health benefits. ^[7]

Just so you can see an example of what these exclusions actually look like, this slide shows provisions set forth within an older health plan issued in a midwest market that excludes coverage of all substance use disorder treatments, some alcohol use disorder treatments, and some residential treatments of the type frequently used by individuals with substance use disorders. ^[8] This next slide shows provisions set forth within a health plan issued in a northeast market that contains a wide variety of behavioral health exclusions. ^[9]

During the past twenty-five years, mental health parity advocates have been trying to chip away at these mental health benefit disparities one by one. ^[10] Even today, they are not gone and they soon may be getting worse all over again. That said, in 1996, President Clinton signed the original Mental Health Parity Act ("MHPA") into law. ^[11] As originally enacted, MHPA prohibited large employer group health plans that offered physical and mental health benefits from imposing more stringent lifetime and annual spending limits on their offered mental health benefits. ^[12] For example, MHPA would have prohibited a covered large group health plan from imposing a $5,000 annual cap or a $50,000 lifetime cap on mental health care if the plan had no annual or lifetime caps for medical and surgical care or if the plan had higher caps for physical health care. ^[13]

Although President Clinton is usually appluaded for this first federal step towards mental health parity, the application and scope of MHPA were very limited. As originally enacted, MHPA regulated only group health plans of large employers, then defined as those employers that employed an average of fifty-one or more employees. ^[14] MHPA did not apply to the group health plans of small employers. MHPA also did not apply to individual health plans, Medicaid non-managed care plans, or any self-funded, nonfederal governmental plan whose sponsor opted out of MHPA. ^[15] In addition, individuals with substance use and addictive disorders, including opioid use disorder, which is what I am specifically interested in, were specifically excluded from MHPA's modest lifetime and annual spending cap protections. ^[16] So there were two tiers of patients with mental health conditions; those with protected conditions, such as major depression, and then the less deserving; that is, those with addiction. ^[17] Moreover, MHPA did not require parity in any other context other than annual and lifetime limits; that is, MHPA did not require parity between physical and mental health benefits in terms of deductibles, copayments, coinsurance, in-patient day limitations, or outpatient visit limitations. ^[18]

Finally, MHPA was also neither a mandated offer nor a mandated benefit law. Nothing in MHPA required a covered group health plan to actually offer or provide any health insurance benefits for individuals with mental health conditions. ^[19] In my prior career, I would advise my client insurers not to offer any mental health benefits because, if they did, MHPA required them to make their offered mental health benefits equal to their offered physical health benefits in the context of lifetime and annual spending limits. You can probably see that my old job made me uncomfortable, which is now why I have a very different career.

Perhaps because of MHPA's limitations, President George W. Bush signed into law the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 ("MHPAEA"). ^[20] MHPAEA built on MHPA by expressly protecting individuals with substancerelated and addictive disorders, including opioid use disorder, and by imposing comprehensive parity requirements on large group health plans. ^[21]

In particular, MHPAEA provided that any financial requirements (including deductibles, copayments, coinsurance, and other out-of-pocket expenses) as well as any treatment limitations (including inpa-tient day and outpatient visit limitations as well as non-quantitative treatment limitations such as prior authorization requirements) that large group health plans imposed on mental health and substance use disorder benefits could not be any more restrictive than the predominant financial requirements and treatment limitations imposed by the plan on substantially all physical health benefits. ^[22] MHPAEA thus would have prohibited a large group health plan from imposing higher deductibles, copayments, or coinsurance amounts, or lower inpatient day or outpatient visit maximums, or more frequently applied prior authorization requirements on mental health conditions compared to physical health conditions. ^[23] Like MHPA, however, MHPAEA only regulated large group health plans. ^[24] MHPAEA also was not a mandated benefit law, so a covered health plan could refuse to offer any mental health or substance use disorder benefits and remain in compliance with MHPAEA. ^[25]

Two years later, in 2010, President Obama responded to this limitation by signing into law the Affordable Care Act ("ACA"). ^[26] Now, this is where it gets interesting really quickly, because everything I am about to say after this point about the ACA could go away if the U.S. Court of Appeals for the Fifth Circuit or the U.S. Supreme Court affirm the December 14, 2018, federal district court opinion of the Northern District of Texas striking down the entire Affordable Care Act. ^[27]

That said, one set of relevant ACA provisions that you see on these two slides here and here extended MHPA's and MHPAEA's mental health parity provisions to the individual and small group health plans offered on and off the ACA-created health insurance exchanges. ^[28] The reason this is relevant to the topic of this symposium is that many individuals who could not otherwise afford health insurance were encouraged by the ACA's individual health insurance mandate and premium tax credits to purchase a qualified health plan. ^[29] Once purchased, federal mental health parity law protected the purchasers. However, the ACA's extension of mental health parity to qualified health plan purchasers...