Ensure essential health benefits parity compliance

On paper, the Affordable Care Act’s requirement that individual and small group plans (Qualified Health Plans, or QHPs) cover MH/SUD services as one of ten EHB was game-changing, intended to rectify the longstanding history of discriminatory practices by insurers against individuals with MH/SUD. In practice, while the MH/SUD category for EHB has ensured basic coverage of many MH/SUD services, CMS’s benchmark approach to define the services in the EHB categories has failed to require sufficient coverage of MH/SUD services. Examples of key coverage gaps include the widespread failure to cover: MH/SUD emergency (“crisis”) services, complete levels of care described in nonprofit clinical specialty association criteria, and Coordinated Specialty Care to treat early psychosis.

CMS itself has expressed concerns that the EHB-benchmark approach creates a “patchwork” and “disparate coverage nationwide.”[2] Reviews of benefits in the benchmark plans have identified significant variation in the MH/SUD benefits offered across the states.[3] This level of variation is an unacceptable outcome for a federal law intended to improve health care access across the country. Additionally, many state benchmark plans are MHPAEA non-compliant. A 2017 review of benchmark plans by the Partnership to End Addiction discovered numerous facial and likely MHPAEA violations. Many of these parity non-compliant plans are still in effect today.[4]

CMS should address these unacceptable gaps by changing its implementation of the ACA’s EHB requirements in the following three ways. First, CMS should establish a federal definition in the MH/SUD benefit category that establishes the minimum level of benefit coverage required for EHB. This would eliminate ambiguity in how the benefit is currently defined and variation in the benefits covered across states, close coverage gaps, reduce discriminatory insurance coverage practices, and increase access to affordable, life-saving care for individuals with MH/SUD. This minimum federal definition should ensure that all levels of MH/SUD care are covered benefits and that key services – including for MH/SUD emergencies (“crisis”) – to treat MH/SUDs are covered.[1]

Second, CMS should also require states to demonstrate that their benchmark plans are fully compliant with MHPAEA. Many states’ benchmark plans were never parity compliant, which has had the effect of permitting MHPAEA non-compliance among QHPs and other state-regulated plans.[1]

Third, CMS should establish an enforcement structure and process for ensuring that the benchmark plans, and QHPs based on the benchmark plans, are compliant with all legal coverage requirements, including, but not limited to, parity, EHB, network adequacy, and provider directory accuracy. CMS currently lacks an effective enforcement structure for holding states and QHPs accountable for their compliance with federal law.[1]