On the heels of a pandemic that has seen rates of depression, anxiety, substance use disorder, and PTSD skyrocket, the moral imperative to provide Americans with a robust and effective mental health care system has never been so clearly at the forefront of our nation’s collective consciousness. The past year has seen unprecedented progress in the realm of mental health care policy and funding, with innovative policies being implemented across the states and the passage of the American Rescue Plan, complete with its $4 billion in funding for programs that support the prevention of, and treatment for, mental health and substance use disorders.

These new policies are exciting “wins” toward improved access to mental health care, but one of the harshest truths in the world of public health policy is that passing a new law is only half the battle. True success is measured in how policies are implemented—and historically, enforcement of policies related to health insurance and mental health parity has been weak.1 However, a hopeful trend has been emerging recently, with authorities across the nation stepping in to enforce Americans’ legally guaranteed rights to high-quality, safe, accessible, ethical, and affordable mental health care.

Mental Health Parity Standards: Insurers Forced to Comply

New York Fines UnitedHealth $15.6 Million

Accused of overcharging plan members by reducing reimbursement rates for out-of-network mental health services, UnitedHealthcare and United Behavioral Health have agreed to pay a $15.6 million settlement over state and federal investigations.2 They have been found to be in violation of the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), which requires that financial requirements and treatment limitations applied to mental health benefits are no more restrictive than for medical or surgical benefits. According to the Department of Labor and the New York State Attorney General, UnitedHealth also inappropriately flagged policyholders receiving mental health care for utilization review, resulting in many payment denials. In addition to the monetary settlement, UnitedHealth agreed to stop committing the violations, improve their disclosures to plan participants, and comply with parity standards going forward.

As previously reported by Psycom Pro, the Departments of Labor, Treasury, and Health and Human Services have issued guidance for health plans and health insurers related to compliance under the MHPAEA, including a Self-Compliance Tool so that payers are designing legally compliant health plans and prepared to respond to audit requests.3 If this investigation is any indication, other health plans should be prepared to defend their mental health parity standards in the coming months and years as authorities seek to improve Americans’ access to adequate mental health care.

Delaware Fines Insurers for Parity Violations

Insurers in Delaware are also facing hefty fines after Insurance Commissioner Trinidad Navarro completed a nearly two-year investigation spurred by policyholders who had lodged complaints against their insurance companies for unequal coverage of mental health medication and services.4 The investigation ultimately found that Aetna Highmark, Blue Cross Blue Shield, Cigna, and United Healthcare repeatedly provided unequal coverage for drugs or services for those with mental health issues. Parity had been violated by the insurers in a number of ways, including inappropriate limits on medication, excessively stringent prior authorization requirements, exclusion of mental health-related medications in cost-saving programs, and inappropriate inclusion of these medications on formulary tiers that require higher copays.5

The insurers are facing a total of $1,332,000 in fines, which were only able to be levied thanks to passage of Delaware’s Senate Bill 230 in 2018, which embedded parity requirements into state law.6

Institutionalized Mental Health Care: States Pressured to Reduce Reliance on Systems

Mississippi’s State Mental Hospitals Violate ADA

A full decade after the federal government warned that Mississippi was doing too little to provide mental health care outside of mental hospitals, a federal judge has found Mississippi to be in violation of the Americans with Disabilities Act for that very reason and has ordered that an independent monitor be put into place to oversee the state’s mental health care system.7 (More on disability justice in the US.)

The state has been charged with numerous allegations, including holding people with mental illness in jails rather than treatment facilities, forcing people to live in institutions far from their families, and providing no effective planning to transition those in mental hospitals to community services after discharge. The oversight monitor will be working to verify data on services provided by the state, develop parameters for future data collection, and determine how to measure the program’s success moving forward. While the state has adamantly opposed the implementation of this sort of oversight, the Department of Justice is advocating that the monitor be in place for at least four years.

Kansas to Address Severe Deficits in Patient Care

After threat of a lawsuit that was backed by a thorough and condemning investigation by the Disability Rights Center (DRC), Kansas has agreed to substantially reform its mental health institutions.8 Kansas currently has more than 600 people institutionalized in state-funded, privately-operated Nursing Facilities for Mental Health; when surveyed, 69% of those residents reported wanting to leave their facility, but only 9% had a recovery and transition plan in place—the rest left suffering in unwanted situations with no case plan for achieving their health and freedom.

Opting to avoid a trial, the state has agreed to ensure each resident has a case manager, treatment plan, discharge plan, and is provided information about community treatment and housing options, and employment opportunities. The state further committed to working toward reducing referrals to institutions and reducing the length of residents’ average stay.

Colorado Accused of Unnecessary Institutionalizations of Children

Despite the state’s recent actions to improve mental health and substance use services through the creation of a new Behavioral Health Administration, the state Department of Health Care Policy and Financing is facing a federal lawsuit alleging that Colorado is in violation of the Medicaid Act by not providing certain mental health services to eligible children at home or in their community, instead subjecting the children to unnecessary institutionalization.9 The lawsuit has been filed on behalf of three unnamed teenagers, one of whom was held in an emergency room for more than 3 weeks because the state was unable to find a long-term residential program able to provide her treatment. This case is still pending, so whether Colorado’s health system will be found in violation, and ultimately reformed, is yet to be seen.

How Mental Health Professionals Can Call for Change

Many of these injustices have gone overlooked for years, and it is, undoubtedly, disheartening to read of people living with mental illness languishing in long-term care facilities without adequate care plans, and of health insurers systematically denying policyholders the coverage to which they are entitled. However, that mental health standards are finally being enforced—and in dramatic ways—by federal and state authorities is an exciting shift in the tone of health policy.

If you or your patients are experiencing issues related to violations of the MHPAEA, ADA, Medicaid, or any other Act which protects patients’ rights to safe, effective, and affordable care, now is the time to speak up. With many of the successful changes noted above having started with policyholder complaints and investigations by advocacy organizations, it is clear that authorities such as the Department of Labor, state Attorneys General, and Insurance Commissioners are open to listening right now—and proving to be ready, willing, and able to stand up for access to mental health care.

Last Updated: Sep 22, 2021