This article is a product of work that has been partially inspired and supported by the Interdivisional (39/42) Task Force on Managed Care and Health Care Policy for the past eight years.

Colorado has one of the best mental health parity laws in the country. In fact, Colorado may be the only state that has "real parity." Although it is limited to "biologically-based mental illnesses," it goes beyond parity for copays, deductibles and maximums, and it calls for parity in preauthorization and utilization review. This effectively eliminates discriminatory preauthorization and utilization barriers to mental health treatment.

Unfortunately, many managed care companies have been ignoring the law. The following two stories describe first a softball attempt to use the insurance commissioner to enforce the law, and second, how to write a hardball letter that quickly brought an insurance company into compliance with the law.

Parity laws have support from consumers and many legislators, but most have a loophole that renders them ineffective. As usually written, these laws require that mental health has only financial parity with physical health for copays, deductibles and maximums. These laws exclude utilization review and preauthorization procedures from the parity requirement. Consequently, preauthorization barriers, excessive paperwork, frequent reauthorization requirements, and restrictive treatment conditions still keep patients from obtaining necessary mental health treatment (Miller, 1996a, 1997).

Managed care companies have supported this type of parity law because their services, preauthorization and utilization review, can be barriers to the use of mental health services the same as financial disparity has been in the past (AMBHA, 1996, Barlas, S., 1996). Although these laws give consumers the illusion that they have achieved parity, managed care is the only real winner. The laws assure that managed care can maintain a lucrative business providing invisible rationing services that protect insurance companies from having to pay for any substantial increase in mental health treatment services (Miller, 1996b, 1996c). Financial parity does little to increase the availability of services; it merely removes the visible financial barriers.

The Colorado Law goes beyond financial parity and closes the preauthorization and utilization review loophole. It states that preauthorization and utilization review shall not be more restrictive for the biologically based mental illnesses than for any other physical illness [Colorado Revised Statues 10-16-104, (5.5)(a)(I), 2005]. Preauthorization procedures, Outpatient Treatment Reports, and inquiries from utilization reviewers are not allowed when they are not used for other physical illnesses. This is real parity.

As a Colorado Law, it applies only to insurance contracts that are signed in the state of Colorado and are not a self-insurance program, which would be covered by federal laws. With these restrictions, it protects only a small number of insured consumers. In my out-of-network practice, I have only had two patients covered by this law. In both cases, the insurance company was ignoring the law, and the following stories tell about two strategies for bringing them into compliance.

The first is a Cigna patient whose mother paid for treatment. The mother is well informed and knew that her son was protected by the parity law. Over a two-year period, she submitted claims to the medical claims office. These claims were almost universally mishandled. Claims were rejected for preauthorization and utilization review criteria that actually were in conflict with the Colorado Law. The worst evasion was a game of pass-the-buck between the medical and the behavioral health branches. They each said the other should pay. Each monthly statement required more than two phone calls to occasionally obtain payment. Some claims were paid by the medical branch and some by the behavioral health branch. Other claims were not paid in spite of phone promises made both to the mother and myself. Thousands of dollars behind in payments, the behavioral health department, nevertheless, demanded refunds for its payments because it had decided that physical health should have paid. The medical and behavioral health branches were unable to communicate and resolve the issues, but they told the mother that it was her responsibility to find a way to coordinate their two branches.

During most of the fiasco, following my recommendation the mother was communicating with the Insurance Commissioner's office. Under the current governor, the appointed Insurance Commissioners have adopted a kinder and gentler approach to insurance companies. The Commissioner's consumer advocate gently nudged Cigna, and finally upon my recommendation, had Cigna assign a single human being to the case so that someone at Cigna could be responsible. Unfortunately, the assigned person was from the sales department. She managed my patient's claims without changing the system so other patients in Colorado did not benefit from the parity law.

The second patient is insured by United Health Care. United Health paid for his first year of treatment and then stopped. During the second year, they lost and misclassified claims so many times that it took eight months to obtain a clear statement that the medical branch would not pay the claims, and that claims must be submitted to the behavioral health branch. After another three months United Behavioral Health refused to pay because I had not complied with their preauthorization and utilization review procedures. When I brought up the Colorado Law, the reviewer read the law, but said that she had no idea what the preauthorization or utilization review requirements for medical conditions were because she had no way to communicate with the medical branch. She could not refer me to any person who could correct the systemic problem of failure to comply with the Colorado Law. She said that I could appeal this individual case. An individual case appeal would not fix their system and a requirement to file an appeal to obtain payment is clearly a more restrictive condition than is applied to other medical conditions.

At this point, I had the facts needed to bring United Health Care into compliance. I asked my patient to sign a form that designated me his representative so that I could resolve the problem as a consumer protection issue rather than a billing dispute. Because I knew I would write a strong letter, I advised my patient that it would be a "hardball" letter.

I summarized the case in a Fed Ex letter (the first paragraph is copied below) to the CEO of United Health Care's parent company, United Health Group. This is the only human being listed on United Health's website who can be held responsible without passing the buck to someone else. I explained that his company was so badly broken that normal channels could not bring it into compliance with Colorado Law. I stated that I was having Fed Ex deliver this letter to him so that someone could be held personally responsible for fixing it. When I have contacted the CEOs of other corporations (Insurance Companies, Apple Computer, and AOL), I have found that the statement that they have personal responsibility brings about a quick resolution. It is not that I ever reach the CEOs, but these individuals are surrounded by people who are empowered to protect them from personal responsibility for a problem.

I am contacting you via Fed Ex in order to establish that someone at United Health Care can be held personally responsible for compliance with Colorado Revised Statues (CRS) 10-16-104, (5.5)(a)(I), the law covering parity for biologically-based mental health conditions. The normal channels in United Health Care have been completely unresponsive. I have made numerous contacts with United Health Care during the past year, and no one in United Health Care has been willing or able to accept responsibility. The issue is greater than payment of the claims on my patient; it affects everyone in Colorado who comes under the protection of this law. If you are not able to successfully resolve this issue, I will contact the media and/or the Insurance Commissioner for assistance in investigating this issue and calling for compliance with the law. The remainder of the letter explained the law, the problems obtaining a response, and the need for a solution. I included ten months worth of unpaid claims.

The contact with the CEO shifts the power dynamics. During the year when United was losing claims, mishandling claims, and passing the buck, I was at a power disadvantage. I spent hours trying to correct mistakes that clerical staff at United Health made in minutes. It cost me much more to try to fix the problem than it cost them to ignore the law. Once the CEO is involved, due to his annual compensation of $9,588,699 and unexercised stock options of $529,986,971 (Families USA, 2003) and the compensation of those who surround him, it costs United Health much more to deal with the unsolved problem than it costs me. I do not earn that much.

To enforce the issue of personal responsibility, I told the CEO that I would need to ask for help from the media if he could not fix the problem. I prefer using the media in the court of public opinion rather than the judicial system because it costs consumers less and can address problems within a matter of weeks rather than years.

Quite to my surprise, I did not hear from the CEO. After a month, regretfully, I was beginning to spend time preparing to involve the media. Then, five weeks after writing my letter, my patient told me that he received over $2,000 in back payments and interest from United Health Care for the 10 months of unpaid charges that I had sent to the CEO. The next week, I had a casual discussion with a colleague who is a United Behavioral Health provider. She told me that she received the nicest letter from United Health Care. The company had gone though their records and identified one of her clients as a person who is protected by the Colorado Parity Law. United Behavioral Health told her that she did not need to have any preauthorization or utilization review for this client. Her letter was dated one month after I wrote to the CEO. United Health Care had changed procedures to comply with the Colorado Law!

Colorado has a real parity law that insurance companies have tried to ignore. With persistence, one company at a time, insurance companies can be coerced into complying with the law. Maybe an insurance company will surprise me someday by engaging in a respectful, business-like dialog, or perhaps a reply to a letter I write.

References:

AMBHA, (1996). Advocating nondiscrimination in benefit design: Treating mental illness on an equal basis (information packet). Washington, DC: American Managed Behavioral Healthcare Association. (Available through AMBHA, 202-434-4565.)

Barlas, Stephen (1996). MH groups seek to resuscitate parity amendment. The Washington Report, available in the AMBHA 1996 packet. (Available through AMBHA, 202-434-4565.)

Colorado Revised Statues, (2005). www.leg.state.co.us Families USA, (2003). Top dollar: CEO Compensation in Medicare's Private Insurance Plans, Publication No. 03-105. (www.familiesusa.org. Washington, DC: Families USA.

Miller, I. J. (1996a). Managed care is harmful to outpatient mental health services: A call for accountability, (1996) Professional Psychology: Research and Practice, 27(4), 349-363.

Miller, I. J., (1996b) Some "short-term therapy values" are a formula for invisible rationing. (1996) Professional Psychology: Research and Practice, 27(6), 577-582.

Miller, I. J., (1996c) Time-limited brief therapy has gone too far: The result is invisible rationing. (1996) Professional Psychology: Research and Practice, 27(6), 567-576.

Miller, I. J. (1997) Beware of a Trojan Horse from managed care: Dangerous provisions in parity legislation. (1997). The Independent Practitioner, 17(3), 138-142.

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