Mental health parity may be the new law, several legislators said last week at a Senate hearing on the subject — but the tricky part of the law, they said, is enforcing it.
The Senate mental health parity hearing continues today, convening in the Capitol Building with former Rhode Island Congressman Patrick Kennedy addressing the Senate Select Committee on Mental Health.
Just because new state and federal laws call for mental health to be covered along with physical health, that doesn’t mean equal coverage will just happen, said Sen. Mark Leno (D-San Francisco) at Friday’s hearing.
“One of the most startling facts of life for public policy makers,” Leno said, “is that we put statutes into law and think the job is done — only to find out, in fact, that the work only begins with the implementation.”
And Leno, for one, would like to expand the ability of state regulators to enforce the law.
“I think we need to review the penalty schedule [in regard to mental health parity compliance],” Leno said. “Because the people being penalized aren’t being frightened one bit.”
California Insurance Commissioner Dave Jones testified that he is authorized to levy fines on health insurers.
“There are monetary penalties associated with non-compliance, but what is frustrating for me is restitution is not available,” Jones said. “If I take a matter to hearing, a judge can order a health insurer to have the correct behavior going forward, but there is no restitution.”
What that means in practical terms, Jones said, is that health insurers aren’t really penalized for denials, since a ruling against them only results in a correction of behavior and the consumers are stuck with long de– at best — long delays in coverage, he said.
“That continues to be a glaring loophole in the law,” Jones said.
Many of the denials of care center on behavioral treatment for autism, Jones said. In those cases, he said, delay could determine whether the behavioral therapy works.
“If the company continues to be intransigent, time passes and there is no real penalty,” Jones said. Now, he said, there’s another level of resistance to autism treatment: “The next denial barrier seems to be a requirement for medically licensed individuals, and imposing treatment limits that way,” he said. “It seems like every step we take, there’s another hurdle.”
Shelley Rouillard, chief deputy director for the Department of Managed Health Care, said the state is limited in enforcing compliance with the federal mental health parity law since more federal direction on the law still is pending.
In terms of enforcing the state mental health parity law, though, DMHC is able to do that well immediately, Rouillard said. She pointed out that the department recently fined Kaiser Permanente $4 million for mental health access violations.
The June 25 action by DMHC was triggered by four main violations, according to state officials, who said Kaiser failed to:
• Ensure that its quality assurance systems accurately track, measure, and monitor the accessibility and availability of providers;
• Sufficiently monitor the capacity and availability of its provider network to ensure that appointments are offered within the regulatory timeframes;
• Take effective action to improve care where deficiencies were identified; and
• Provide accurate and understandable mental health education materials.
The Kaiser fine signals that enforcement of the state mental health parity law can work, Rouillard said.
“The department believes strongly that our survey process and enforcement authority, focusing on compliance with California’s mental health parity law and overall quality and access issues, does provide the necessary oversight of mental health parity, as the recent enforcement action against Kaiser demonstrates,” Rouillard said.
“I believe the enforcement systems we have are adequate,” she said. “We will be testing that, frankly, with the Kaiser fine. We’ll see if they change the way they’re operating.”
The chair of the Senate Select Committee on Mental Health, Sen. Jim Beall (D-San Jose), said last week’s and today’s hearings were prompted in part by a UC-Los Angeles study.
“They looked at mental health and compliance with insurance plans and they found that people were getting inadequate coverage almost three-quarters of the time,” Beall said. “That’s in the private insurance market, where three-quarters of the people weren’t getting adequate mental health coverage. We’re talking millions of people.”
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