Brynn Anderson/AP Photo
Margo Jarvis takes part in a video teleconference at Cohen Veterans Network, April 22, 2020, in Fayetteville, North Carolina. During the coronavirus pandemic, the organization pivoted their mental health services to telehealth at their 15 clinics across the United States.
On January 30, the Biden administration announced it would end the COVID-19 public-health emergency (PHE) that has been in effect since early 2020. Experts and advocates have long warned that the PHE’s expiration, which is currently set for May 11, will herald colossal shifts in the nation’s public-health landscape, including millions of Medicaid redeterminations.
Less attention has been paid to what might happen in mental health care, and in particular telemental health care, which has become a mainstay in the COVID era. Anticipating the PHE expiration, the Biden administration has extended some telehealth provisions through next year, but mental health professionals and advocates have voiced concerns over what types of services will be available, and how insurance benefits and coverage will be structured.
These shifts will also unfold amidst pre-existing obstacles the country faces in achieving mental health parity, or the equal coverage of treatments for mental health and substance use disorders in insurance plans compared to medical and surgical treatments. Though the PHE brought about some stopgap solutions to long-standing problems within mental health insurance coverage, those solutions may fall away with the expiration. At that point, both mental health patients and their providers will confront an insurance system that is even more fractured than it was in 2020.
The Telehealth Lifeline
Before the pandemic, just 1 percent of outpatient visits were conducted via telehealth. But as COVID hit, demand surged for providers who could meet with patients online or over the phone. Federal regulators increased provider reimbursement for telehealth to facilitate medical care without risk of infection.
Linda Michaels, a psychologist and the chair and co-founder of the advocacy organization Psychotherapy Action Network, told the Prospect that though teletherapy is “certainly different than being face-to-face,” it has nonetheless helped patients immeasurably in recent years. “The most effective ingredient of therapy, which has been studied and reconfirmed over many decades,” Michaels pointed out, “is the relationship between patient and therapist.” Teletherapy allows for that relationship to flourish.
The PHE has undeniably created more options for patients to get care. For example, patients have been able to get prescriptions for controlled substances without an office visit, after an in-person requirement for prescriptions was waived. Now, providers may have to coordinate a backlog of patients who will need to make in-person appointments. Experts expect this process to be especially problematic for adolescents, people living in rural areas without widespread access to mental health professionals, and patients from marginalized communities, who may already struggle to find clinicians who understand their identities or experiences.
In a health system stratified by varying types of health insurance, the consequences of the PHE’s expiration will also be dependent on one’s insurer. Medicaid coverage will be extended on a state-by-state basis, and the Centers for Medicare & Medicaid Services announced that Medicare will cover telemental health through 2024. After that, Congress will need to decide if Medicare will continue to pay for telehealth on par with in-person visits, or if patients will carry the burden of cost sharing.
Interference by Insurance
Private insurance companies have not yet announced what they will do after the PHE expires. But across the mental health care space, insurers often act not as the conduits to care they purport to be, but rather as interfering actors—and there is no indication these companies have internalized the lessons of the pandemic and will behave differently now.
Michaels notes that insurance plans sometimes require therapists to sign up for special subnetworks to provide teletherapy, or become credentialed on their platforms. These platforms may be more restrictive, more intrusive, or less secure. For instance, clinicians in Cigna’s network can use MDLIVE, a virtual care delivery platform that provides video links and scheduling tools. (MDLIVE is owned by Evernorth, which is part of Cigna.) To use the platform, therapists pay a fee to the network; in some cases, the fee cuts their reimbursement rates in half just to use a video link. “They’re making money off of us in multiple ways,” said Michaels.
Few advocacy groups exist for patients and therapists to collectively organize around these issues. Indeed, although one of the main reasons patients don’t seek help for mental health disorders is the cost of treatment, many therapists don’t discuss financial matters with patients and are reluctant to acknowledge the transactional aspects of the therapeutic relationship. Absent forthright discussion with providers and clarity in their insurance contracts, patients can be left unsure of what they can expect or demand from their carriers.
Companies, meanwhile, can deny coverage by taking advantage of the “gray areas” in behavioral health, which make it easier for insurance to categorize therapy treatments as unnecessary. These tactics leave people seeking mental health care vulnerable to rationing by insurance companies.
Kathryn Gallagher, a staff psychologist at the Austen Riggs Center and an insurance and utilization review specialist, told the Prospect that she is disturbed by some of the profit-driven strategies that insurance companies use on patients. Gallagher has watched how companies perform “audits” of high-utilization, high-billing patients whose needs deviate from industry norms. Companies claim these audits are in place to prevent fraud and abuse; Gallagher believes they are in place to disrupt treatment and ration care. Investigations triggered by undisclosed in-house algorithms can create substantial stress for patients and providers, at times even resulting in repayments of previously granted reimbursements.
Gallagher has written appeals to insurance companies on behalf of clients who have been denied coverage. But sometimes, she says, there is just “no way to win. Either a patient is getting better, so their insurance cuts off treatment, or they’re not getting better ‘fast enough,’ so the company pushes them out of treatment as a cost-saving measure.”
Alongside other advocates, Michaels and Gallagher are calling attention to the ways that insurance companies and employers have exploited loopholes to avoid offering equal mental health coverage. To these stakeholders, true parity between mental health services and physical treatments means that insurers must honor the terms of their plans and pay for whatever care has been deemed necessary by a treating clinician, not what has been decided by a company’s finance department. That should happen no matter where or how treatment takes place—on the phone, via an MDLIVE link, or face-to-face in an office.
What Does Parity Really Entail?
After high health care cost inflation in the 1980s and the collapse of President Clinton’s national health insurance plan in the 1990s, the U.S. experienced a dramatic expansion in managed care. Carriers began limiting mental health treatment to crisis stabilization, and sparse regulation existed to push companies to invest in longer-term therapies. The combination of those forces led to the “Wild West” mentality that characterizes the contemporary insurance industry, said Eric Plakun, a psychiatrist and the medical director at the Austen Riggs Center.
The environment began to change somewhat in 2008. The Mental Health Parity and Addiction Equity Act (MHPAEA) mandated that large group insurance plans with benefits for mental and substance use disorders could not restrict treatment access for those disorders, compared to the access they provided for medical and surgical treatments. Under MHPAEA, patients are entitled to whatever treatment their clinician deems necessary, co-pays or coinsurance for treatment cannot be higher than for medical care, and beneficiaries should have just one deductible and out-of-pocket maximum––not one for mental health and another for physical.
In 2010, the Patient Protection and Affordable Care Act went further, naming mental health care as an essential health benefit. The ACA reinforced parity law on its exchange plans and also required transparency for coverage denials. And in 2020, the Consolidated Appropriations Act began requiring companies to issue report cards on their improvements in parity compliance.
Despite these efforts to protect the accessibility of mental health services and limit insurer abuses, most insurers remain out of compliance. In 2022, not a single company out of the 150 surveyed by the Department of Labor could demonstrate they had achieved parity. Meiram Bendat—the founder of Psych-Appeal, a law firm that helps patients and providers challenge treatment denials—writes that parity gains have been effectively negated by “unreasonably low reimbursement benchmarks.” In recent years, disparities between behavioral health and physical health services have actually widened.
Wit and Generally Accepted Standards of Care
In the absence of true parity, Bendat has supported patients as they resorted to trying to set a precedent for the coverage of mental health and substance use treatment. In perhaps the most important lawsuit on mental health coverage in the U.S., Wit v. United Behavioral Health (UBH), 11 plaintiffs insured by UBH allege that the company systematically failed to authorize multiple types of outpatient and residential treatments, though treating clinicians had deemed them medically necessary. Internally developed guidelines UBH used to determine access to care limited treatment to crisis stabilization. UBH did not respond to the Prospect’s request for comment.
A litigator on the case, D. Brian Hufford, told the Prospect that by only covering crisis stabilization, UBH had breached its fiduciary duty. Crisis stabilization standards, he added, fail to meet clinicians’ generally accepted standards of care (GASC), since they don’t treat underlying, chronic, and comorbid conditions. These elements of treatment are important to patients’ pursuit of long-term recovery and the success of outpatient psychotherapy. Advocates maintain that insurer definitions of medical need to be consistent with GASC.
In 2019, Judge Joseph Spero of the District Court of Northern California ruled that UBH had made decisions about whether to cover lifesaving mental health treatment based on its own financial interests, and ordered the company to reprocess more than 67,000 coverage claims for 50,000 patients. He also ruled that UBH was wrong to deviate from GASC principles, which experts say are the result of decades of clinical expertise and recommendations from nonprofit professional organizations.
For a time, the Wit decision was a landmark victory against the country’s largest behavioral health insurer.
But in a bizarre reversal in March 2022, a three-judge panel for the Ninth Circuit Court of Appeals released a paragraph-long decision determining that it is “not unreasonable” for UBH to apply its own standards on plans. Then, on January 26, months after the plaintiffs filed motions for reconsideration and while they awaited a possible en banc review, the original three judges released a second brief. This time, though the panel stated that UBH had violated its fiduciary duty, it also determined that the 50,000 individuals do not have the right to have their claims reprocessed. So the precedent Wit set for mental health coverage still hangs in the balance. Access to treatment depends on it.
Areas for Reform
Whatever comes of the verdict in the coming months, Wit is not a silver bullet. Importantly, all of the plaintiffs in the case were subject to the Employee Retirement Income Security Act of 1974 (ERISA)—a federal law that authorizes standards for employer-sponsored health plans, which cover around 136 million people. In his testimony for Wit, Bendat explained that two-thirds of those people are covered by self-funded plans, which are entirely exempt from state insurance laws and regulation. Because the vast majority of United Behavioral Health’s plans are self-funded, it is exceedingly difficult for the Labor Department to adequately oversee them or issue penalties for violations.
To fill these gaps, advocates have urged Congress to enact H.R. 1364, the Parity Enforcement Act, which was last introduced in 2021. Bendat has also urged lawmakers to consider legislation that, among other things, would align insurers’ medical necessity criteria with the medical community’s GASC. Gallagher notes that although Judge Spero identified and endorsed GASC principles, “he didn’t invent them.” Instead, the principles “exist with or without the [Wit] verdict. We own them as clinicians. We should never give over our authority as clinicians—and we certainly shouldn’t give it over to insurance companies.”
Even if that legislation passes, tens of millions of Americans still lack any parity protections. Medicare and traditional Medicaid, for instance, aren’t subject to federal parity law. Nor are government employee plans. Fortunately, some progress is being made in this realm. At the end of 2022, the House passed legislation that will remove the ability of state and local government-funded plans to avoid the Parity Act, starting in 2024. This is a good step in securing nationwide protections, but “it’s not good enough,” Plakun insisted, “for employed people with jobs, who get insurance that way, to get better access to care.”
Hearing Plakun’s words, it’s hard not to think back to three years ago this week, when cities across the U.S. began to experience the effects of the COVID-19 pandemic. Nearly ten million people applied for unemployment benefits that month; many of them lost job-based health insurance. For a moment, it seemed possible that the U.S. health insurance system, and all its pitfalls, might come under sustained scrutiny. The public-health emergency was part of that moment, with the federal government stepping in to try to level the playing field, albeit temporarily—making it easier for Americans to access telehealth and also making new claims about the public’s right to accessible mental health care. In that sense, the PHE helped the country get closer to true mental health parity, though it is not commonly described that way.
While the PHE didn’t give way to durable changes in the structure of U.S. health insurance, its expiration does not have to mean the end of its advances in mental health parity. Access to vaccines and COVID-19 treatments will remain intact, as will access to buprenorphine and take-home doses of methadone for people seeking treatment for opioid use disorders. Other waivers and extensions are still in flux and decisions need to be made on them in the coming months, like the ability of health care providers to use telehealth to dispense some prescription medications. The Drug Enforcement Administration and HHS can extend those flexibilities.
While the public awaits updates on further legislation and rule changes, mental health professionals like Gallagher and Michaels assert that both patients and clinicians have a role to play in safeguarding mental health coverage. Together, by responding to medical necessity denials, they can put pressure on insurers for coverage abuses and supply alternative forms of accountability.
“People come to therapy feeling disempowered for real and important reasons,” Gallagher said. “Then they have the rug pulled out from them by insurance companies that are supposed to have their best interests in mind.” As infuriating as these crises are to her, and as devastating as they can be to patients, Gallagher also sees them as opportunities to develop patient resilience and mastery of treatment. Through appeals, patients can demand the care that their insurance contracts are supposed to provide them. These moments also offer opportunities to build solidarity. As a psychologist, Gallagher reflected, “it’s easy to fall into a passive bystander position in relation to insurance plans.” She urges clinicians “not to take a back seat, and to take an active role in fighting insurer denials. Otherwise the companies just continue to profit.”
