No Scrubs: TLC has advice about Mental Health Parity enforcement for the DOL
Part III In my "open comments about MPHAEA" series
Previously, in this newsletter’s series on a request by the Department of Labor to have more robust reporting about mental health parity1 we learned new things!
For new readers, the law in question is the Mental Health Parity and Addiction Equality Act (MHPAEA), which is part of the standards for health benefits, as regulated under ERISA.
The spirit of the law is mental health and general medical care should be equally accessible. The payers have used illegal treatment limiting strategies. These are called ”NQTLs,” and they are cheating on this principal. This series uses classic hip-hop to explain what we should tell the Department of Labor to do in this open comment period.
From Destiny's Child (Part I):
Cheaters —in MPHAEA speak, “NQTLs”—need to be caught in the act.
From Shaggy (Part II):
Lax rules around the behavior of Insurance Plans have led to exactly the Cheating one would expect—managed by denial of objective reality.
Today, we will continue our exploration of the DOL’s proposed rules—and providing helpful guidance— with the guidance of the immortal TLC: We begin with their classic “No Scrubs.”
Tionne "T-Boz" Watkins, Lisa "Left Eye" Lopes, and Rozonda "Chilli" Thomas might not be federal regulators. However, as guidance to help the DOL select Scrub-reduction strategies in their ERISA reporting and enforcement, they are prescient. This days’ article is about disparate Payment Rates for Mental Health and Substance Use Disorder services as Non-Quantitative Treatment Limits (NQTLs). Much like “No Scrubs,” we also want…no Scrubs when it comes to mental health accessability.
Clear communicators all, Watkins, Lopez, and Thomas start with a very clear definition of “Scrubs”—singing in perfect harmony:
A scrub is a guy that thinks he's fly
And is also known as a busta
Always talkin' about what he wants
And just sits on his broke ass
Scrub: defined.
They disambiguate the term by immediately clarifying its alternate terminology— “also known as a busta.”
This is the sort of upfront definition of terms that would have benefited the Department of Labor. Identify the thing you don’t want, define it, define alternate terms—these women are SERIOUS about Scrub Avoidance. Watkins, Lopez, and Thomas continue:
So no, I don't want your number
No, I don't want to give you mine and
No, I don't want to meet you nowhere
No, I don't want none of your time and
They are not looking for excuses. They include criteria. They want no Non-Quantitative Boyfriend Insufficiencies clarified. This guidance is a good idea for mental health parity! We, as employers, and regulators, want no scrubs when it comes to parity! In the context of MHPAEA enforcement,
Reimbursement rates for in-network behavioral health professionals are generally lower than for in-network M/S providers providing comparable services.
TLC, is not a fan of under-reimbursement among Scrubs:
'Cause I'm looking like class, and he's looking like trash
Can't get wit' a deadbeat ass
In keeping with the the desire to avoid deadbeats, one could provide information to the DOL about the following:
Which types of Medical /Surgical (M/S) providers are the appropriate comparators to which particular types of MH/SUD providers for this purpose?
Well, as I have previously argued, the level of acuity is one way of making an appropriate comparison!
When comparing life threatening conditions—acutely suicidal individuals who need complex management, for example:
Psychotherapy and surgery can be similarly difficult, complex, and high intensity jobs. Some therapists do that complex work. Some surgeons do complex work, in emergency situations. Trauma surgery is a specialty. There is no emergency psychotherapy equivalent. I've been on a lot of plane rides in which the doctor on board was required. At least in my case, 100% of them had a psychiatric component to the emergency.
Our taxonomy has failed. Our payment models have failed. And it leaves patients with borderline personality disorder unable to get great care in the most appropriate settings. My emphatic suggestion:
Pay more for psychotherapists doing extremely difficult work. Train psychotherapists doing that work to a higher standard. Measure the work that they do relentlessly. Iterate.
Let us compare life saving treatment from neurosurgery and life saving treatments from psychiatry and therapy based on their high acuity and life saving-ness!
Which specific types of MH/SUD and M/S providers should be considered for purposes of the comparative analysis data collection and evaluation requirement on reimbursement rates for NQTLs related to network composition?
These specialists in complex high acuity care—in any setting—could be compared to the specialists in trauma surgery, or the ICU.
If you don't have a car and you're walking
Oh yes son, I'm talking to you
If you live at home with your momma
Oh yes son, (I'm) I'm talking to you (baby)
If we are referring to lower value services those of course would be compared to lower complexity or acuity general medical care…we do not admit patients to the ICU for a mild headache. We also don’t pay $7 for the complex multidisciplinary care in the ICU.
In determining average in-network payments, average billed charges, and average allowed amounts, should the average be calculated as a mean, a median, or a mode?
One of the nice things about science is that we can use statistics to compare the probability of things and determine if they are due to chance!
If we demand all the data be submitted on all payments for both “MH/SUD” and “M/S” and expect parity? We would expect the mean, median, and mode calculations should look the same in “medical care” and “mental health!” This is what statistical methods were invested for! To determine is something is not likely due to chance!
Please, DOL, compare mean to mean, mode to mode, and median to median! Compare apples to apples. Make all three comparisons. If parity is factual, they will not be different! Parity is our hypothesis.
Next, ask the statistical question: if there are differences, what is the probability that they were by chance? If there are statistically significant differences in these payment rates using any method of calculating….I am afraid we might be looking at a Scrub:
Wanna get me with no money
Oh no, I don't want no
No scrub, no scrub (no, no)
No scrub (no, no, no), no scrub (no, no)
Lawmakers asked for parity. Collect the data on claims submitted across all specialties. Compare based on levels of acuity and medical necessity. Are the payments less for mental health compared to med/surgical than chance would predict?
No? We don’t want those scrubs! Health plans have been cashing in…
Health insurance premiums2 have gone up 140% since passage of the Affordable Care Act, Murphy said. He criticized United Health Care for its size and reach across health care, from physicians to insurance to prescription drugs, although “so many others” are engaging in vertical integration in health care.
Channeling T-boz, Left Eye, and Chili, I say:
Well a scrub checkin' me
But his reimbursement rate is kinda weak
In that mode…The DOL has solicited our feedback!
Please send comments via email to mhpaea.rfc.ebsa@dol.gov.
No…scrubs.
Stay tuned for the next thrilling article!
—Owen Scott Muir, M.D.
presumably to allow for enforcement