State shirking parity-law enforcement against
Medicaid managed-care plans, advocates say

Crain’s Health Pulse


State regulators are not doing enough to ensure Medicaid managed-care plans comply with a federal law that bars discriminatory coverage of mental health conditions and substance-use disorders, behavioral-health advocates say.

At issue is the Mental Health Parity and Addiction Equity Act, passed in 2008. The federal law prohibits insurance companies from imposing more stringent conditions on mental health and substance-use benefits than they do for general medical and surgical care.

A compliance review released by the state last month found that all Medicaid managed-care plans failed, at one point or another, to provide the state with 
responses and analyses that were comprehensive enough for regulators to assess their compliance with nonquantitative treatment limitations, such as medical-necessity criteria and prior authorization.

The state singled out five plans for using different techniques to determine reimbursement rates and to conduct retrospective and outlier reviews for their mental health and substance-use-disorder benefits than they did for medical and surgical coverage. As far as enforcement, the review said only that regulatory action against those insurers—Affinity Health Plan, Amida Care, Fidelis Care, Independent Health Association and MetroPlus Health— is “being considered.”

Christine Khaikin, senior health policy attorney at the Legal Action Center, a legal-services organization based in the West Village and Washington, D.C., commended state officials for reviewing plans’ compliance with all nonquantitative treatment limitations rather than examining only one or two, as other states have. But she criticized New York’s drawn-out process.

Accountability needs to be immediate and substantive to ultimately drive behavior change by health plans, she said.

“During all this time,” Khaikin said, “we can lose sight of the fact that there are people who are really being harmed and suffering because they are unable to access care because their plan is restricting it in some way.”

Leslie Moran, senior vice president of the New York Health Plan Association, which represents 29 managed care plans in the state, said nonquantitative treatment limitations have evolved over the past several years and that health plans are committed to working with the state to refine the metrics. She said plans have worked diligently to ensure access to mental health and substance-use disorder services.

“Determining compliance with the parity laws is a complex process – and has been further complicated by the ongoing pandemic,” she said in a statement.

The state Department of Health, Office of Mental Health and Office of Addiction Services and Supports conducted the review with the assistance of Milliman, an actuarial and consulting firm in Seattle that the state hired to define and structure the process.

Managed-care organizations were offered individual consultations with state and Milliman representatives to go over the review’s findings and discuss next steps.

New York has so far issued at least 95 citations to Medicaid managed-care plans for noncompliance with the parity law. A citation initiates a back-and-forth exchange of information and corrective action plans with regulators.

Mark Genovese, a spokesman for the Office of Mental Health, said the state has not conducted any other enforcement measures to date against Medicaid managed-care plans.

“New York state is committed to continued and ongoing monitoring of the Medicaid managed-care plans for parity violations, with the specific work plan outlined in the report,” Genovese said in a statement. “This year the state will be conducting focused surveys that will test in-operation [Mental Health Parity and Addiction Equity Act] compliance for Medicaid managed-care plans.” The agency did not respond to follow-up questions about its enforcement strategies.

Lauri Cole, executive director of the New York State Council for Community Behavioral Healthcare, said the response is an example of officials acting more like intermediaries than regulators. The statewide association represents 110 organizations that provide mental health and substance-abuse services. “They’re passing messages between plans and providers and not enforcing,”
Cole said.

By contrast, the Department of Financial Services, which regulates commercial health plans, has levied fines for noncompliance. Aetna, Oscar and Wellfleet were ordered to pay a combined $2.6 million in penalties for parity violations, the department announced in December.

In the review, the state said its next steps are to develop formal parity compliance protocols for use in operational surveillance and ongoing monitoring of managed-care organizations, launch field audits and conduct more in-operation surveys.

Cole said that doesn’t cut it, as far as enforcement goes. “When I look at that report, what it says to me is that health plans are getting away with major infractions,” she said. “The way to make a health plan come to attention is to issue a fine that sends a clear message.”

The providers represented by the Council for Community Behavioral Healthcare often file parity-related complaints against health plans, leading to a citation, but Cole said that produces only an endless discussion loop that treats the issue as a one-off rather than systemic.

Khaikin said she is optimistic that in-operation reviews could be illuminating, because they will assess how plans are actually operating rather than just the policies they have on the books.

“We do need to see a lot more accountability, but this report is pretty exciting in some ways,” she said. “It indicates to me that hopefully going forward that will happen.” —Maya Kaufman