The Washington Post’s Joel Achenbach recently described the nation’s opioid crisis as “a decentralized disaster that authorities understand they cannot solve with handcuffs and prison bars alone.” Indeed, pretty much everyone, up to and including President Trump, who calls the epidemic a public health emergency, agrees that it requires novel solutions.
Too bad Trump’s administration won’t use a tool that is immediately available and could bring treatment to millions of Americans.
Nearly a decade ago, our country took a remarkable step forward on behavioral care. With the passage of the Wellstone-Domenici Mental Health Parity and Addiction Equity Act, Congress said group health insurance plans and insurance issuers that provide benefits for mental health and substance use disorders cannot treat such benefits more restrictively than they treat other medical services. This protection was subsequently expanded in the Affordable Care Act, which provided that opioid addiction, depression, anxiety and other behavioral conditions must get the same level of coverage as physical health claims. The ACA also extended the parity requirement to individual plans and included behavioral health coverage as an “essential health benefit” in ACA plans.
But many Americans are suffering without getting the treatment they need because for-profit insurance companies are finding ways to deny it.
As a litigator who has made a career of fighting for patients and providers, I’ve seen how pervasive this conduct is and can attest that relying on private insurers to provide proper coverage is unreliable at best. An investigation by New York’s attorney general of ValueOptions, an administrator of behavioral claims for 2.7 million people, found that “denials were nearly twice as common for mental health claims than for other medical claims submitted” and “nearly four times as common” for addiction treatment. Another New York AG investigation revealed that, during one year, Blue Cross Blue Shield licensee Excellus denied inpatient addiction treatment “seven times as often” as inpatient medical services. And the state said its action against Emblem Health for “widespread violations” of parity laws could lead to more than $30 million being returned to consumers.
Delaware’s attorney general this fall announced a new program to assist those dealing with coverage denials, reporting that “coverage being denied or cut off comes up more than any other concern” for families affected by addiction. This is hardly surprising, given that, according to the National Center on Addiction and Substance Abuse, insurance plans nationwide are failing to provide coverage of necessary addiction treatment. In fact, now that parity precludes numerical limitations on behavioral health treatment, insurers are using more creative means to restrict coverage. The chief executive of a Florida treatment center, for example, notes that insurers can be even tougher now in providing coverage than before the parity rules; while 30 days used to be the standard for in-patient rehabilitation, now insurers often approve as little as five days, forcing patients and providers to fight for additional time. Notably, insurers have recognized the effectiveness of this strategy, with 63 percent of coverage denials for substance abuse treatment now resulting from insurers’ restrictive interpretation of what constitutes a “medical necessity.”
This problem is so extensive because the largest insurers are primarily incentivized to maximize profits for shareholders, not to ensure proper coverage for the insured. Confronted with laws broadening behavioral coverage, insurers put their lawyers and lobbyists to work — not to determine how to best deliver on Congress’s intent but to find every possible way to undermine it. And it’s worked. Consider that private insurers cover 54.4 percent of overall health-care spending costs but only 20.8 percent of addiction treatment costs, according to a 2012 Columbia University study. That study also found that individuals with private insurance are three to six times less likely than those with public insurance to receive specialty addiction treatment.
Insurers’ avoidance of legal obligations cannot be blamed on the Parity Act but on a failure to enforce it. On Oct. 20, in testimony before the President’s Commission on Combating Drug Addiction and the Opioid Crisis, Labor Secretary Alex Acosta stressed that the opioid epidemic was the “number one issue ” in joblessness, effectively sidelining millions of workers. But, while acknowledging that his department is responsible for enforcing the Parity Act, he suggested that it can do so only employer by employer and is unable to directly challenge insurers.
This claim of limited authority is wrong. The Labor Department has considerable authority to bring claims against insurers — it simply must choose to use it.
The law around this can get complicated, but at its heart are provisions in the Employee Retirement Income Security Act, which governs all private employer benefit plans. Under ERISA, an insurer that administers such a plan is a fiduciary, which must comply with all of ERISA’s requirements — including the Parity Act, which was incorporated into ERISA — and must act “solely in the interest of” insured parties. Not only are insured people allowed to sue to enforce ERISA, but the labor secretary is explicitly authorized to bring civil action against an insurer that violates the Act.
This gives the administration a powerful weapon to address the opioid crisis. Enforcement of the Parity Act through ERISA would help ensure that those who suffer from addiction can obtain effective treatment — treatment that should already be available under their health insurance policies. But that won’t happen if Acosta maintains that his department cannot directly act against insurance companies.
The U.S. Court of Appeals for the 2nd Circuit weighed in on this issue in 2015 in a case my colleagues and I brought, New York State Psychiatric Association, Inc. v. UnitedHealth Group, challenging whether an insurance company, acting as a claims administrator for an employer-funded plan, can be sued for Parity Act violations. The court’s precedent-setting ruling struck down insurers’ primary legal defense, saying an insurer that makes coverage decisions as administrator of an ERISA plan is unquestionably a proper defendant in such cases. Indeed, the 2nd Circuit expressly rejected the argument of UnitedHealth Group, one of the nation’s largest insurers, that it could not be sued directly for Parity Act violations.
The failure — or unwillingness — to use this weapon as part of a national opioid strategy flies in the face of Trump’s pledge to spend “a lot of time, a lot of effort and a lot of money on the opioid crisis.” So far, the only effort to enforce key Parity Act provisions has come from private lawyers, but the lawsuits we are pursuing are not enough.
Initiatives announced by Trump, or by Congress, may take hold at some point, but there’s no reason for our leaders to wait. The law is there right now. It just needs to be enforced.