Alignment for Progress: 
A National Strategy for Mental Health and Substance Use Disorders

Individuals needing MH/SUD services often face difficulties finding and accessing in-network providers. This can result in long wait times, high out-of-pocket costs, and inadequate care. While some states have established their own network adequacy standards for MH/SUD providers, such as timely access and geographic distance standards or provider-to-enrollee ratios, these standards vary widely. And even in many states that have standards, they are qualitative, rather than quantitative in nature, significantly impairing enrollees’ rights and making the standards difficult to measure or enforce.[1] Additionally, large employers often self-fund their plans, which are subject only to federal law and are not required to meet timely access or geographic distance standards.

While federal policymakers are working to require stronger network adequacy standards for Medicaid, Medicare, and individual marketplace plans, individuals in large employer-based plans should not be without protections. Congress should establish uniform, quantitative timely access and distance standards for MH/SUD services for all employer-based plans nationwide. If a plan’s network is unable to provide needed MH/SUD services for an enrollee within these standards, the plan should be required to arrange out-of-network services with the enrollee’s cost-sharing limited to what they would have paid had in-network services been available. Numerous states have implemented such standards, including California, which requires that health plans have medically necessary MH/SUD services available within 10 days.[2] More than a dozen other states have mandated quantitative time and distance standards.[1]

Millions of individuals with MH/SUDs are unable to access the services they need. A significant part of the problem is that reimbursement rates for MH/SUD services are often lower than those for physical health services, which can discourage providers from participating in certain insurance networks or accepting insured patients.[2] Conversely, higher reimbursement rates can incentivize providers to join insurer networks and encourage more people to become MH/SUD clinicians, increasing access to care.[3] Reimbursement rates also vary widely across payers and markets.[4] This variation can create challenges for providers to navigate complex billing and payment systems and for patients to afford and access quality care. The GAO can play an important role in increasing transparency of reimbursement rates paid and disparities that exist that inhibit access to care.

Forced arbitration provisions are a long-standing and widespread practice to prevent consumers from accessing the judiciary system to gain relief, forcing individuals to agree to a closed-door tribunal not subject to important legal safeguards.[1] While current ERISA regulations prohibit such provisions, plans may nonetheless seek to use them and argue that the Federal Arbitration Act overrides the regulations.[2] If these provisions become widespread and are deemed enforceable, they would have devastating consequences for Americans’ health coverage rights, including under the Mental Health Parity and Addiction Equity Act. This is because arbitration results are not public and cannot be used to change health plans’ widespread practices, which can affect large numbers of people – not only the claimant. Forced arbitration in ERISA plans threatens the civil rights of the nearly 150 million Americans covered by ERISA plans.[3] The Mental Health Matters Act, which includes a subsection to ban such provisions, passed the U.S. House in 2022.[4]

Current regulations require the Centers for Medicare and Medicaid Services (CMS) to develop a Medicaid Managed Care Quality Rating System in consultation with states and other stakeholders.[2][3] Under these regulations, CMS is responsible for identifying key performance indicators, including a subset of mandatory performance indicators, and providing guidance to states regarding these or their own proprietary quality measurement programs.[1] Beginning in 2024, federal law mandates that states report on two core sets of quality measures: a pediatric set and an adult set.[4][5] Each of these includes behavioral health measures. As these core sets cover a spectrum of specialty and primary care services, core behavioral health measures should include benchmarks for behavioral health integration.[1]

To provide whole-person care, clinical care teams need patient information related to mental health, substance use, and physical health. However, 42 CFR Part 2, a discriminatory provision of federal law, places severe restrictions on the sharing of SUD patient information that go far beyond HIPAA’s requirements. This restriction further stigmatizes SUDs and hinders the integration of SUD care with mental and physical health care. These separate rules have put patient safety at risk by inhibiting sharing of patient information among teams of clinicians (e.g., a physical health care provider might unknowingly prescribe an opioid to an individual with opioid use disorder). These restrictions have also decreased the overall quality of SUD care by making it harder to address patients co-occurring SUD, mental health, and physical health needs, and hindering clinical research that has been made more difficult by keeping SUD data segregated from mental and physical health data.[1]

To address these problems, Congress passed the Protecting Jessica Grubb’s Legacy Act as part of the 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act.[2][3] The law takes steps to align 42 CFR Part 2 with HIPAA by facilitating the sharing of clinical information with care teams that are essential to accurately diagnose, treat, and provide whole-person care. While HHS has proposed rules that effectively implement many of the CARES Act regulations, the proposed rules do not go far enough. The Congressional sponsors – as well as advocates – have urged HHS to ensure the final rule has patient consent requirements that allow the sharing of SUD information simple and straightforward.[4][5] For example, it is essential that the consent process be folded into the existing HIPAA consent process. HHS should also ensure that SUD patient data does not need to be segregated from other HIPAA-protected data once data has been transmitted between providers. In short, HHS must ensure that the intent of the CARES Act provisions is implemented and that it does not leave barriers that effectively result in a patient’s SUD information, after consent has been given, not being integrated with other patient health information.[1]

If HHS does not effectively address these longstanding barriers in its final regulations, Congress should simply eliminate any discriminatory distinctions between SUD and other patient health information, which are all currently subject to HIPAA’s requirements.

In 2017, the Centers for Medicare and Medicaid Services (CMS) began paying physicians and non-physician practitioners separately for supplying patients with Behavioral Health Integrated Services (BHI).[4] These services involve a closer partnership between treating physicians and mental health and substance use disorder (MH/SUD) professionals, which has proven beneficial to patients and has evolved into the Collaborative Care Model (CoCM). This model has been demonstrated effective by more than 90 randomized-controlled trials and can help to more effectively utilize limited MH/SUD provider capacity.[5]

Critical infrastructure is required to effectively implement BHI/CoCM services.[4] When properly incentivized, BHI/CoCM approaches to care have a demonstrated potential to improve care for individuals with MH/SUD. CMS uses G-codes to assess and address functional limitations in patients, including difficulty seeing, hearing, mobility, communication, cognition, and self-care.[6][7] These billing codes include approvals for reimbursement of services using CoCM approaches, but reimbursement levels have been insufficient to scale adoption more broadly.[3] Insufficient compensation for training and technical support has effectively contributed to continued payment silos between MH/SUD care and primary care.[1]