The Texas legislature votes that existing state laws don’t go far enough to protect patients’ access to mental health care.
It’s no accident that the Texas capitol building stands about fifteen feet taller than its domed federal counterpart in Washington, DC. In both their buildings and their attitudes, Texans like to stand a little taller, symbolizing their characteristic independence. Texas' rugged individualism has even, at times, led state lawmakers to threaten secession from the U.S. government over issues of potential overreach. Basically, Texans like their taxes low, their markets free, and their government small. Current governor Greg Abbott once described his former workdays as state attorney general by saying, “I go into the office, I sue the federal government, and I go home.”
All of that is why it’s a curious miracle that in 2017, Texas lawmakers passed House Bill 10/Senate Bill 860, extending the State’s power to better enforce federal mental health and substance abuse treatment parity laws. Even though Texans hate government regulation of business, this may be a rare case where it's justified. Texas House Speaker Joe Straus appointed the House Select Committee on Mental Health in 2015 and charged them with studying every aspect of mental health in Texas, including mental health care parity. The committee’s 2016 interim report to the House stated, "Because mental health affects so many segments of our daily lives (i.e. education, medical care, health insurance, criminal justice, homelessness, etc.), it is absolutely one of the most critical areas of concern facing Texas today."
As an introduction, “mental health parity” means that the government requires health insurance companies to cover mental health care like any other illness or condition requiring treatment. All Texans who care about mental health—their own or others’—need to know about the ways their legislature is working to help provide and de-stigmatize mental health care. The new law, authored by Rep. Four Price (R-Amarillo) and Sen. Judith Zaffirini (D-Laredo), and signed by Gov. Greg Abbott, became effective on September 1, 2017.
The Parity Act was a big step forward for patients. However, it only applied to health plans offered by companies with more than 51 employees.
The federal laws about parity came in four waves. First, in the 1990s, Congress passed the federal Mental Health Parity Act (MHPA). In 2008, the U.S. Congress expanded the MHPA by passing the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA, or “the Parity Act”). Traditionally, health insurance companies limited their members' access to mental health care, if they covered it at all, through visit limits and pre-authorization requirements, as well as greater, unfair financial responsibility for the patient. The Parity Act was a big step forward for patients. However, it only applied to health plans offered by large employers, which is defined as an organization that employs greater than 51 employees.
In 2011, Texas adopted mental health parity rules under the Texas Administrative Code to comply with the MHPAEA. Like the MHPAEA, the Texas rules only applied to large employers and only dealt with quantitative treatment limitations (QTLs), like higher deductibles and copayments. The last time Texas addressed the parity question was in 2011, and like the federal laws, the Texas laws were unsuccessful in making mental health parity the norm.
The third piece of federal legislation affecting mental health care parity was the Affordable Care Act (ACA) in 2014, which expanded the MHPAEA to also apply to most private health insurance plans. Then, in 2016, federal rules further expanded the federal parity protections to Medicaid Managed Care plans and the Children’s Health Insurance Program (CHIP).
According to a policy briefing from The Center for Public Policy Priorities about the testimony before the Texas House Select Committee on Mental Health, “Texans reported having to pay cash for services or not receiving services, and providers reported frustrations with the many administrative barriers they face to get needed services approved.” Representatives of the Texas Department of Insurance (TDI) reported, “many parity complaints and suspected violations fall outside of the scope overseen by TDI,” and recommended legislative action that would expand TDI’s authority to include all types of health plans regulated by the state. The new Texas legislation also includes the power to enforce non-quantitative treatment limitations (NQTLs), such as insurance requirements that make mental health providers prove the medical necessity of treatments.
In addition to expanding TDI’s policing power, the new Texas law will create data collection departments in two state agencies—TDI and the Health and Human Services Commission (HHSC)--to better address instances of NQTLs, which are more difficult to pinpoint. The TDI will collect NQTL-related data for mental health and substance use disorder services, as well as comparison medical and surgical data, from all health insurance plans regulated by the state. HHSC will collect data for Medicaid Managed Care plans. Both the TDI and the HHSC must report their findings by September 1, 2018.
In addition, HHSC will staff and facilitate a stakeholder workgroup to foster common understanding and communication among various concerned parties and other stakeholder groups. The HHSC group was created in late August 2017, will convene quarterly, and will terminate on September 1, 2021. To help consumers who might encounter obstacles trying to access mental health care, HHSC’s Office of the Ombudsman will create the new position of Behavioral Health Access to Care Ombudsman. This position will service both Medicaid-CHIP and private insurance plans.
Although neither TDI’s nor HHSC’s websites have yet to show any indication of the new legislation, when it comes to mental health care, it’s reasonable for Texans to get their hopes up. Though Texas lawmakers refused to participate with the Affordable Care Act’s insurance exchanges or expanded Medicaid program, this new law is a boots-on-the-ground step forward in helping mental health care providers and those they serve.
The House Select Committee on Mental Health Care certainly seems optimistic: "Texas is well-positioned to be the country’s leader for mental and behavioral health care. We have accessible world-class resources available throughout Texas. We also have a statewide desire and leadership in every region of our state to make world-class resources available to every community of Texas so that access to mental health services and treatment is not determined by a patient’s zip code. This is an achievable reality – just as we have already done in other areas of medical science."