Supervisors push for “real access” to mental health care
SAN JOSE – Committed to ensuring that all residents of Santa Clara County receive timely access to mental health care, the Santa Clara County Board of Supervisors authorized the County’s legal team and administrative officials to pursue County sponsorship and support of legislative, regulatory, and litigation strategies to address gaps in achieving mental health parity.
The Board’s action came in response to a proposal in October by County Supervisors Joe Simitian and Cindy Chavez that seeks to push commercial health insurers – either through the federal rule-making process, litigation, or legislation – to ensure that people seeking coverage for mental health care can access treatment as easily as people seeking coverage for medical treatment.
“I want to make sure our residents have access to the mental health care their insurance coverage should provide. I want to make sure there’s real access,” said Simitian, Chair of the County’s Health and Hospital Committee. “Whether it’s litigation, legislative advocacy at the state and federal level or advocacy around rulemaking, there’s a role for us to play here. We have the ability to weigh in with impact on an issue of national importance and one that could not be timelier.”
The federal Mental Health Parity Act was passed in 1996 to establish parity between mental health benefits and other health benefits. California’s Mental Health Parity Act (Assembly Bill 88) was enacted three years later.
Subsequently, the Mental Health Parity and Addiction Equity Act (MHPAEA) passed in 2008 required insurance coverage for mental health conditions, including substance use disorders, to be no more restrictive than insurance coverage for other medical conditions.
Despite these requirements, residents of Santa Clara County have reported significant challenges when trying to access mental health care. “More than 25 years after the initial legislation, people are still not getting the help they need and deserve. We have to push,” said Simitian.
"Our NAMI Santa Clara County family members are still facing an uphill battle when it comes to parity in mental health treatment,” said Uday Kapoor, NAMI Santa Clara County Board President. “Insurance providers limit the number of visits to a psychiatrist or therapist. These companies frequently require pre-authorization for critical medications and deny claims for mental health services. They violate parity laws, while our loved ones suffer. This behavior has been tolerated for far too long.”
“It’s clear that a number of factors are at play here – sometimes it’s a lack of clear communication by health plans to members about their behavioral health care coverage, or under-enforcement of the law, or inadequate accountability when enforcement actions are taken against health plans for mental health parity violations,” said Simitian. “The shortage of mental health care providers also doesn’t help. And while there have been both private and public efforts to address the problem of non-compliance with mental health parity law, these efforts to date have been met with substantial barriers and produced only modest results.”
County Counsel’s recommendations for potential legislative and regulatory strategies include advocating for:
• Streamlining the grievance process (wherein enrollees can challenge adverse coverage decisions) by requiring health plans to automatically notify the California Department of Managed Health Care (DMHC) of certain categories of mental health-related grievances; expanding access to expedited review processes for enrollees experiencing imminent and serious mental health needs; and, closing a potential loophole in the law that allows health plans to reduce their responsiveness requirements by classifying certain communications as an “inquiry” rather than a “grievance.”
• Requiring health plans to make certain mental health-related performance data available in their open enrollment brochures and on their websites, enabling consumers to make informed choices.
• Legislation that directs a portion of the administrative penalties collected by DMHC to affected counties to help fund county safety-net behavioral health services, and additionally requires DMHC to factor the adverse impact on county-level systems into its total penalty calculation for an offending health plan. Some penalties are currently used to support a student loan repayment program for physicians. To address the nationally recognized shortage of behavioral health professionals, the loan forgiveness program should be expanded to include and prioritize not only physicians but also other licensed behavioral health clinicians, such as licensed marriage and family therapists.
“There are several areas of the law that can be strengthened to increase compliance and empower enrollees seeking mental health services from their health plans,” said Tony LoPresti, County Counsel for Santa Clara County. “The solutions we’ve initially identified focus on legislative and regulatory advocacy as a first line, with the option to pursue litigation if necessary.”
County Counsel noted that while litigation can be a powerful tool to challenge unfair and unlawful business practices, such as a failure to comply with mental health parity laws, it is often a slow and uncertain process. For that reason, any comprehensive strategy for ensuring private-sector compliance with mental health parity laws should include policy changes that strengthen enforcement and empower consumers. Legal changes could potentially be pursued through either the legislative or regulatory processes, as appropriate, with litigation as an additional option to pursue as needed.