UnitedHealthcare and its subsidiary Optum, in delaying payments for mental health treatments, may be violating the Mental Health Parity and Addiction Equity Act, the federal official in charge of administration for such matters said in an interview.
As we previously reported, UnitedHealthcare’s Optum subsidiary began subjecting thousands of therapy payments to a “pre-payment review” in the last several months, therapists and patients told us. After the visit takes place, the out-of-network psychiatrist or therapist is paid by the patient (usually) and the patient submits the bill for reimbursement, to UnitedHealthcare. But Optum, managing health services for UnitedHealthcare, sends a letter to clinician and patient saying it wants detailed clinical records for a “pre-payment review” before sending money. No reason is given. (Our earlier post here.) As a result of delayed payments, a number of psychotherapy patients have stopped treatment, therapists say.
Lisa M. Gomez, assistant secretary for employee benefits, is the head of the Employee Benefits Security Administration in the Department of Labor. She discussed our reports on UnitedHealthcare-Optum withholding therapy payments in a Zoom interview.
In September, acknowledging that the 2013 parity act was not consistently being observed, the Biden administration finalized a regulation to enforce it better, beginning Jan. 1. The rule requires insurers to evaluate which mental health services are covered and how much those providers are paid, as well as on frequency of requiring or denying prior authorizations for coverage, and to generally “strengthen protections to expand equitable access to these benefits as compared to medical and surgical benefits and reduce barriers to accessing these services,” according to a press release.
Defining a violation
I asked her Gomez if the practice I wrote about is legal.
“The question of whether or not it’s legal really depends on whether the insurance companies are asking for similar types of information if you are having a medical or surgical procedure rather than mental health,” she said.
“If a plan can say, ’if a person has a certain mental health condition or addiction, and then they have a medical condition that is similar within the same type of classification, and we make them jump through all of these hoops,’ then it’s fine. But the chances are very unlikely that they are requiring the same of both. That’s where it becomes a violation of the law.
Unequal treatment can be about the money, or about the number of visits, she said. Some insurers say you get six visits for therapy for depression, she said, but 40 visits for therapy for your knee. Or you pay $25 in a copayment if you go to see a specialist for your heart condition, but $75 a session for your therapist, or someone to treat bipolar syndrome. “Those are the financial pieces which are also illegal,” she said.
“But the types of things that you refer to are what we call ‘non-quantitative treatment limitations.’ They are limitations that are not quantified in a financial sense, but the hoops that people are required to jump through, like paperwork — having to do all of these things in order to get paid, and making it more difficult to get paid. It deters people from being able to get payment. It deters providers from being willing to be in the network, from being willing to accept insurance at all.
“Our rule goes to address all of those things, and to require health plans and insurance companies to show us, to do an actual comparative analysis.”
How it works
In a case like what’s above, Gomez said, “we would reach out to the plan and/or the insurance company, and find out what’s going on with respect to that individual case, so we could make a determination whether what they’re doing is legal or not. That can either turn into something where we’re looking at it more broadly, not just this one person’s experience, but how the plan is being administered. It’s probably unlikely that it’s a one-off problem, and it’s more that it’s a system or operational problem.
“It’s not that one person at the health plan made a mistake and asked for too much. They’re probably asking the same of everybody. Or sometimes we’ll go in, not prompted by a complaint, but we’ll just go in to go look at a specific insurance company or specific third-party administrator to see what are they doing, and can they do this analysis and show us that they are, in fact, not imposing more restrictive limitations on the mental health and substance use disorder claims? And they’re not having these additional barriers like you’re speaking of? And if they cannot demonstrate that to us, they can’t show that to us, then we will tell them that there’s a determination that they violated M.H.P.A.E.A., and they have to take corrective action. And whatever the corrective action might be would be changing their practices, but also frequently going back and looking at their records and finding out, what or who was affected by that, and how are you going to correct that?”
“Under the law, we first issue what is called an initial determination letter. And that initial determination letter says just upon our initial look that there’s a problem,” she said.
E.B.S.A. has issued reports to Congress over the past couple of years on this topic. The reports (this is the 2023 report; this is the 2022 report.) give “a really good look at what enforcement has looked like over the past two years,” she said. With these initial determinations of noncompliance, “every single plan failed at the first level.”
Gomez spent nearly 30 years at Cohen, Weiss and Simon, a New York law firm, before joining E.B.S.A. in 2022, and has “spent almost three decades representing various Taft-Hartley and multiemployer pension and welfare plans, single employer plans, jointly administered training program trust funds, a federal employees health benefit (FEHB) plan, supplemental health plans, and VEBAs covering employees in a wide array of industries,” according to her E.B.S.A. bio.
Update: I asked Optum for comment, but they did not supply a comment by deadline. This is what they sent after deadline:
“We follow all state and federal laws, including the Federal Mental Health Parity Act. We encourage any provider with questions about a pre-payment review request to contact us at (877) 972-8844.
“Additional info on background:
“Impacted claims are being released and reprocessed; no further action is required from the member or provider.
“Earlier this year we incorporated Commercial psychotherapy claims into our existing pre-payment review process for both in-network and out-of-network providers.
“Based on feedback from providers and members, we paused reviews for these psychotherapy codes in late August.”
Multiple violations
While the M.H.P.A.E.A. has been in existence for almost 16 years, Gomez said, plans were not as a general matter “taking it super seriously.”
“With every plan that we looked at, there were violations,” she said – with a range of “how bad things were, but nothing was perfect.”
“After that initial determination, we would work with the plan to try to make corrections with them, because what we want is everything to be voluntarily corrected,” rather than long dragged-out litigation.
“So we work with the plans and tell them, ‘here are the places where you’re falling short, and here’s how you need to fix it.’ We go through that process until we eventually get to a point where, and this is the case with most plans, they’ve made the corrections they need to make, and so we’re done. But there are some plans that never get to that place, and they get a final determination of noncompliance.”
If plans are not compliant, she said, “we name them in the report to Congress. It’s kind of like a public shaming. And we also like issue this determination, and the plan is required to tell all of its participants that they have failed, so that everybody knows.
“The hope is that people can know — if they have a choice they want to be covered by that plan, and that the employer knows.
While every plan failed at the outset, in the first year’s report, she said, in last year’s report, there were only four plans that got that final notice.
The effects for patients
Such practices certainly affect patients, she noted.
After the realization that a patient needs help, she said, “And then, if they have to jump through all these hoops, lay out money, all the things that you’re talking about to get care, it’s hard to not feel that someone is trying to make the road especially difficult for you to get care, and kind of hoping that people will drop off along the way. That unfortunately happens a lot of the time.
“We had one person say that she just could not afford to get well because she didn’t have the money. Some people have the wherewithal to pay for it and cross your fingers and hope it’ll get paid for. But lots of people do not have that benefit.
“Some people are putting the money out there, tremendous sums of money, because they have no other option, and they’re just really hoping it resolves itself. We have one woman who put a second mortgage on her home for her daughter’s care, and incurred about $200,000 in out-of-pocket costs, and the plan denied payment. For something like nine months, she contacted us – she happened to hear about us on a radio station somewhere — and it took about nine months, but we were able to get the plan to resolve it and to pay her back.
“Not everybody has a house to put a second mortgage on. So it’s really critical for us to be putting the word out there and making it known to plans that you can’t be doing what you’re doing — these things to make people jump through all the all of these additional hoops. We are going to come in and have you show your work and show us why you’re doing that, and unless there is a reason for you to be doing it, then you can’t keep doing that. I think the word is getting out, but it’s a very it’s been a very slow go for us.”
Only if you can pay
I told her that when I started reporting on U.S. healthcare in 2011, it became apparent that often you really only get mental health treatment if you can pay for it, without insurance. That’s not the way it’s supposed to be.
Gomez said, “It’s certainly not the way it’s supposed to be. When we look at statistics, you see that lower-income people, people in underserved communities, lower-paid workers are not getting this care. And why is that? Because they can’t afford to get this care. And there are other reasons too — cultural reasons, stigma, all sorts of other reasons — but a big reason is just not being able to afford it. Many people say it’s like a luxury to get care for mental health, when it should not be legal.
“It shouldn’t be that it would be a nice thing for” mental health coverage and medical-surgical health coverage to be the same, she said. “It’s the law that it be the same. So we really upped our enforcement efforts starting in 2021, because Congress passed an amendment to the mental health parity laws. As a result of that, we have really increased our enforcement efforts greatly. It’s a priority on our enforcement side.”
Completely separate from this issue of UnitedHealth and Optum, the mental health care networks are often tiny, and they feature the “ghost networks” where the network that the insurers claim is full of people who aren’t really there, I pointed out.
“That is certainly part of the issue, and a huge part of the final regulations,” she said. “There’s a final regulation is about making sure that there are no greater barriers to access to care, so you can have a document, a plan, brochure, that looks like you have these great mental health benefits as compared to your actual mental health benefits.
“But the issue is that if you have a mental health crisis, as opposed to a physical health crisis, there are no participating doctors in your network that are accepting patients. You have to wait six months to get an appointment. You have to travel 40 miles, or whatever the case may be, because there’s so few therapists, or, as you say, there’s the ghost networks.
“I’ve heard stories of literal ghost networks, where the providers listed are no longer living or they’re not accepting new patients. In our regulation, we talk a lot about network adequacy and that that is a part of access. Because if you can’t see a doctor or provider for these wonderful benefits that maybe you have under your plan, then what good is that? So under our regulation, that is another part — who’s in your network, what does the adequacy look like as compared to your medical and surgical network? Because if you don’t have something that is on par, you’re going to fail.
Circular problem
“Also looking at the reimbursement rates for mental health and substance use disorder providers, as compared to medical and surgical providers. What are you reimbursing those providers, as compared to the other providers?” she said.
“It’s a kind of circular problem, because the plans will often say, ‘Well, our networks are tiny because there are no mental health providers that will accept insurance or come into our network, and there’s just a shortage of mental health providers anyway.’
“Well, why is that? That is largely because they’ve been treated so poorly by the insurance companies for so long. So who wants to participate? Who wants to take insurance? And who wants to even get into this field? I’ve talked with providers who kind of look at it like this is charity if they’re getting into the field.
E.B.S.A. has pointed out, she said, that “if you had a problem that you didn’t have enough cardiologists in the network, what would you be doing — what do you do in that situation, as compared to what you do when you don’t have enough psychiatrists.
“We don’t expect miracles. The system is not going to correct itself overnight – it took a long time to get here. But plans really need to be showing us that they are acknowledging the problem and moving in the right direction.
”The other issue is what you said previously, that people, individuals, have just accepted that if you need to get mental health care, you’re going to have to pay out of pocket, and maybe you’ll get reimbursed one day. And that has been accepted as the norm and the reality.
Changing the narrative
“We’ve been trying to say: All three pieces have to be changing the narrative on this, so that the plans realize ‘I really need to get to a point where I’m not trying to explain how to find some loophole or make myself fit to look like everything’s fine. I have to actually make it better.’
“And then providers need to be having faith in the system, and the insurance companies and plans need to create that faith in the system. The providers need to be expecting more and know that they can expect more, and then be willing to work with the system again and come in.
“And then participants also need to realize that these are their rights, and they should not just accept that this is the way it is. It’s changing the whole way of thought for everybody, and we’re trying to really get those messages out there.”
Gomez said the system operates partially on complaints, which her investigators would examine to see if this is an individual issue or a systematic problem. They also “might affirmatively, having never received a complaint, go out and say, ‘Well, let’s look at ‘Fill In The Blank’ insurance company.”
In the reports to Congress, they did “call out some” companies even if it’s not a final determination. For example, they found an insurance company was not covering applied behavior analysis (A.B.A.) therapy for autism, and that was not on par with other benefits, “so corrective action was taken.”
“We do really encourage people, whether they be providers or individual patients, to contact us if they’re having any problems, or something just seems wrong — like some of the stories that you described — not to assume that we know that there is an issue with that particular plan, because unless people do report them to us” the agency may not know.
“We like to tell people, when in doubt, just call us, and we will tell you if it’s something that O.K., you need to call the state insurance department about this, or you need to call [the Centers for Medicare and Medicaid Services] about this, because we don’t regulate Medicare,” she said. But in general, if someone has problems, “we can send them in the right direction.” E.B.S.A. handles job-related plans, but if the problem is an Affordable Care Act-related problem, or other non-job-related problem, the E.B.S.A. phone line can probably advise on the right authority to approach, she said.
E.B.S.A. also handles other job-related benefits, like retirement, disability, COBRA and other issues.
Hotline and resources
The hotline is at 866-444-3272, and an email message form and resource center are at this link. The phone and emails are able to talk in multiple languages.
There is also a web page with resources on parity for individuals, employers and insurers.
I asked her if there was anything else she wanted to say in closing, and she “you should always try to work with your insurance company first, because it may be that there’s a simple explanation, but if you are not getting resolution, you should definitely call us, and we can try to help.”
Also she said the agency has a small budget, and enhanced enforcement funding expires at the end of this year.
“We are continuing to try to get that extended so that we will have more funding to do this,” she said. “Right now, we’re in a bad position, where this rule goes into effect on January 1. And our funding is going out as of the end of this year, but the rule is not going away.”
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If you have information about insurance payments for mental health care, or other issues you think we might want to know about, please email jeanne@clearhealthcosts.com or use our secure Signal at 914-450-9499.
Others in our series:
UnitedHealthcare delays mental health payments, causing outrage
Therapy patients stop treatment after ‘pre-payment reviews’ swell
UnitedHealth-Optum payment delays for therapy may violate mental health parity, official says
Optum squeezes patients and clinicians further in ‘pre-payment review’ delays
UnitedHealthcare’s Optum strongly criticized by psychologist, psychiatrist groups
UnitedHealth’s Optum says it has stopped delaying therapy payments, though many are still unpaid
UnitedHealth’s Optum pre-payment reviews drag on, though company says they are over
UnitedHealth’s Optum continues mental health payment delays, despite saying they have ended
Insurers’ wide payment reviews drive therapy practices to despair
