Mental health parity may finally become a reality

The Wellstone Act could bring better health care to millions of Americans

Then, in October 2002, Wellstone was traveling to a funeral in Eveleth, Minnesota, when his plane crashed in a forest. The 58-year-old senior senator died, along with his wife, his daughter, and five others.

While his friends and surviving family grieved, they also resolved to take action in his memory. Sen. Edward Kennedy and his son, Rep. Patrick Kennedy, came to Ramstad's office not long after.

"They said, 'We want to get this mental health parity bill done for Paul Wellstone,'" Ramstad remembers.

Dave Wellstone leads a parity action strategy meeting with University of Minnesota student leaders
Mark N. Kartarik
Dave Wellstone leads a parity action strategy meeting with University of Minnesota student leaders

With new motivation, they kept working, and Dave Wellstone joined the cause.

For the next five years they continued to push for a satisfactory bill. In 2007, Ramstad and Patrick Kennedy toured the country, hosting field hearings to drum up support. By 2008, "it got very dramatic," Ramstad remembers. "The House and the Senate were bickering, and Patrick's dad would call in every day from his sick bed."

But before the bill could come to a vote, Congress adjourned.

"I was very dispirited," Ramstad remembers. "But there was this recession and we had to pass a bank bill, and I told my staff, 'We can't quit now. They're going to call us back.'"

Sure enough, a few days later, everyone was called back for a special session. The press box at the Senate was packed, Ramstad remembers, with people waiting to see what would happen on the $700 billion financial bailout.

"Then they shocked everyone and called up our bill for action first," Ramstad says. The Senate Majority Leader "added the bank bailout bill as an amendment to the mental health parity bill, and the whole package passed."

Gerrity was there too, along with Dave Wellstone.

"It was a magic moment," she remembers. "When the vote passed all these members were looking up at Dave and smiling and giving the thumbs up."

The House passed the bill two days after, and one day later, President Bush signed it into law. It was six years to the month after Paul Wellstone's death.

The bill was supposed to change everything. Except it didn't.

"Initially, it seemed pretty normal that there would be interim regulations and public commentaries and of course the insurance opposition," says Gerrity. "Then Obama got elected and we thought, 'This is good. We'll get these done.'"

Everyone has a different theory on why regulations for the bill got derailed. One problem is that three federal agencies have their hands on the bill, which makes the process three times as complicated.

Another issue is the Affordable Care Act, a.k.a. Obamacare. The same regulators tasked with implementing and enforcing the Wellstone Act are the ones overseeing the ACA roll-out.

"They've got a ton on their plate, and it's a legacy issue for the president," says Carol McDaid, the D.C. lobbyist. "So parity has fallen to the side."

The ACA itself has a parity provision, and will go a step further than the Wellstone Act in one regard: Mental health is one of the 10 "essential health benefits," which means insurers will have to cover it.

But elsewhere in the ACA is a parity provision that just cross-references the Wellstone Act and its regulations. As McDaid explains it, if regulators don't figure out a final rule on the one, the other won't have sharp enough teeth either.

Regulators ran into a third roadblock when it dawned on them just how complicated these issues are. A U.S. Department of Labor report from January 2012 notes that after the interim rules went out, regulators "realized the complexity of the law and regulations gives rise to many highly technical issues and questions," and that there has been "considerable confusion" about the details.

"It's pretty easy for us to figure out, 'Okay, if you're allowed six physical therapy visits then you get six therapist visits," says Sue Abderholden, the executive director of NAMI-Minnesota. "But one of the biggest issues has been the non-quantifiable limits. If you're allowing nursing home care to recover from knee surgery, would you allow an intensive residential treatment plan?"

The hypotheticals like that are endless. And a fourth major delay came from the insurance companies themselves. United Health provides coverage to more than 70 million people; UBH provides behavorial coverage for one in six insured Americans. But the company has expressed concern over the Wellstone Act.

In written comments submitted on the interim rules in 2010, United Health argued that the regulations are stricter than the law intended, and "will have unintended, negative consequences that will disrupt access to appropriate behavioral health care." The company cites the possibility of higher premiums, increased out-of-pocket costs that serve as a deterrent to care, "and, in some cases, loss of behavioral health coverage altogether."

United Health recommended a longer transition time to comply with the law, no parity for "non-quantitative" treatment (like Bird's residential care), and deductibles for mental health benefits separate from the medical/surgical deductible.

To Wrobel, the lawyer who has represented Bird and more than 20 other clients with similar cases, the company's complaints are "pretty clear," she says. "I think it's perceived as expensive."

Kim, like Katie Bird, bears the scars of her insurance battles in paper. Hers are organized in a thick, white binder. She sighs as she drops the pile on a coffee shop table.

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