Mental Health Parody -- Ask Not For Whom the Bell Tolls ...

Many people have heard and even used the expression, “Ask not for whom the bell tolls; it tolls for thee.” In doing so, those same persons misquote the original statement and in all likelihood, do not fully understand the original intent of the words.

In 1624, John Donne, then the Dean of St. Paul’s in England penned, “Devotions Upon Emergent Occasions and severall steps in my Sicknes.” As part of his musings upon life and death, Donne wrote,  “… any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls, it tolls for thee.”

It is believed that Donne wrote this missive while suffering from a severe case of spotted fever and believed his death was imminent. The meaning of his work was that each individual is part of a greater whole such that the death-bell has deep and significant meaning for all who hear it.

Because of its repeated almost universal erroneous usage, the incorrect statement is believed by most to be accurate. And yet, it is not. Indeed, no matter the number of times we may incorrectly or inaccurately use a saying, an expression, a law or belief, if the usage is false or otherwise not accurate, it remains false and inaccurate.

So too, is the conundrum of the Mental Health Parity and Addiction Equity Act (“Act”) passed by the United States Congress and signed into law by President George W. Bush in October 2008. On its face, this Act was designed to prevent group health insurance plans and health insurance companies whose policies provide mental health benefits from imposing less favorable benefit limitations on mental health benefits than on medical/surgical benefits.

The insurance industry repeatedly points to those insurance providers who now provide some coverage for mental health issues as proof of their good faith compliance with the Act. They trumpet the dollar amount they have paid on mental health claims as further supporting evidence. And all the while, they would have us believe the accuracy of, “Ask not for whom the bell tolls.”

In November 2017, in a national study published by The Milliman Group, one of the world’s largest actuarial and consulting companies, , Milliman found:

1.    In 2015, behavioral care was four to six times more likely to be provided out-of-network than medical or surgical care;

2.     Insurers paid primary care providers 20 percent more for the same types of care than they paid addiction and mental health care specialists, including psychiatrists.

In addition, higher co-payments and separate deductibles for mental health treatment remain an on-going issue for insureds.  When combined with the gross disparity of patients seeking mental health care out-of-network, the Milliman report paints a bleak picture of severely restricted access to much needed addiction and mental health care.

In response to the report, Kate Berry, a senior vice president at America’s Health Insurance Plans, the insurance industry’s main trade group, brings new meaning to the term, “naïve bordering on offensive deflection” when she states the problem is not within the insurance industry but instead says the real problem is the shortage of behavioral health clinicians.

Ms. Berry’s ludicrous statement and the insurance industry’s position is further contradicted by a second, independent analysis issued by RTI International and its health economist, Tami Mark, PhD. In December 2017, the RTI report not only corroborated the Milliman report but further revealed that higher rates are paid to physical health doctors than to psychiatrists, even for those patients whose primary diagnosis is a mental health condition.

Marvin Ventrell, Executive Director of the National Association of Addiction Treatment Providers and Parity Implementation Coalition Co-Chair stated, “In the wake of these two reports, it is clear that we simply do not have mental health and addiction parity in this country as our law and policy dictate we should.” He later said, “These analyses show a pattern of insurers avoiding their obligations and then unfairly blaming mental health and addiction treatment providers for the problem of lack of care delivery.”

This disparate treatment continues even as litigation continues to rise. In late 2017, Los Angeles based attorney Lisa Kantor instituted class based litigation against Kaiser Foundation Health Plan alleging that Kaiser violated both the Federal Mental Health Parity Act and the State of California Mental Health Parity Act by and through its coverage/treatment decisions of the named plaintiff.  The inaction and coverage decisions made by Kaiser in that case would be grossly comical … if the potential results were not life threatening.

In May of 2017, Banner Health was named as a defendant in class based litigation in an Arizona federal court for violations of the federal parity act for its across the board denial of “applied behavior analysis therapy” from coverage for autism spectrum disorder on the grounds that it was experimental or investigative.

In May of 2016, Blue Shield of California and Magellan Health Services were sued in a California federal district court for wrongfully restricting patients access to out-patient and residential mental health treatment. In June of 2017, the court granted a request for class action status.

In September of 2016, a federal district court in California certified a nationwide class against United Behavioral Healthcare. In that case, UBH’s insurance coverage criteria was at issue.

Insurance coverage regarding residential treatment centers is an ever growing source of dispute in federal courts.  The number of cases has risen from seven (7) cases in 2014, to sixteen (16) cases in 2015, to forty-seven (47) cases in 2016. And whereas 47 cases may not seem like a tidal wave, one must consider that in most cases, a patient must first navigate through the muddy and maddening administrative process imposed by ERISA before filing litigation. And while the volume of case filings has increased, the source of the coverage dispute is fairly constant: whether residential treatment is medically necessary and whether the patient could be treated in a less intensive setting, such as an outpatient level of care.

In great part, disparity arises because insurance providers are allowed to create their own treatment criteria and protocol without any governmental, regulatory or objective oversight. One cannot dispute that generally accepted guidelines are neutral, transparent and based on thorough research.  And yet, according to Dr. Anita Everett, president of the American Psychiatric Association, when insurance companies create their own standards, "[t]he process is often not transparent, conflicts are not disclosed, and the standard is generally more restrictive which suggests a focus on cost, rather than patient outcome."

Mental Health Parity. Say it enough times. Say it multiple times… Mental Health Parody. Truly if one says it enough times, it appears to echo with a ring of noble humanitarianism.  And yet, that resonating echo is merely the "Siren's Call" seductively drawing one towards the rocks in the same manner as, “Ask not for whom the bell tolls.”