oregon mental health parity act and 2005 and administrative rules and peter courtney

These are two serious essays with a humorous twist. They are serious because the subject matter of the legislation is a hugely important issue in health care coverage in our day; it is humorous because, as we will see, Oregon for some reason covers treatment for "transvestic fetishism" while denying coverage for all other so-called "paraphilic" disorders. Well, let's lay out the issue so you can see it unfold.

The Act

By a large bipartisan majority, the 2005 Oregon Legislature passed legislation assuring mental health-care benefits to people in like proportion to health care benefits for "other medical conditions." In the words of Oregon Insurance Division Administrator Joel Ario, by so doing Oregon moved from about 35th most-friendly to mandated mental-health benefits to right near the top. State Senator Peter Courtney (D-Salem) said that passage of this Act was the crowning achievement of his nearly quarter-century as a legislator. The purpose of this and the next essay is to explore the Act and the implementing regulations and then allude to the curious case of "transvestic fetishism."

Though the legislation was and is potentially momentous, and though it has 14 subsections in the Oregon Revised Statutes (ORS 743.566), the crucial section is at the beginning:

"A group health insurance policy providing coverage for hospital or medical expenses shall provide coverage for expenses arising from treatment for chemical dependency, including alcoholism, and for mental or nervous conditions at the same level as, and subject to limitations no more restrictive than, those imposed on coverage or reimbursement of expenses arising from treatment for other medical conditions. The following apply to coverage for chemical dependency and for mental or nervous conditions..."

The operative language is the provision of services for "chemical dependency" and "for mental or nervous conditions" "at the same level as" other medical conditions. The statute then goes on to define chemical dependency (ORS 743.556(1)(a)) but leaves "mental health and nervous conditions" undefined. Sometimes law students and lawyers think that imprecision in legislative language is an indication that legislators don't have their act together. In this case, however, it clearly meant that no large majority was "on board" for the definition of this phrase. Thus the plan was to adopt the phrase, which had resonance in earlier iterations of the law (which allowed for a cap on mental health services at a certain number of visits per year), and then let the rulemaking process take care of the fine points that the legislature couldn't agree on.

The issue, then, as it confronted the rulemaking committee, consisting of representatives from providers, insurers, consumers, business people and other stakeholders, was how broadly to construe the phrase "mental health and nervous conditions." The insurance industry wanted to be able to define covered conditions as they saw fit; the consumer groups wanted every category of mental disorder in the DSM-IV covered. Thus, over the course of about eight months, the committee met, heard testimony, received written reports and finally, just a month or so ago, came up with a several-part administrative rule which clarifies the phrase "mental health and nervous conditions" in ORS 743.556.

The Administrative Rule

Here is what they did. In OAR 836-053-1404 they said:

"(1) As used in ORS 743.556, this rule and OAR 836-053-1405:
(a) “Mental or nervous conditions” means:
(A) All disorders listed in the “Diagnostic and Statistical Manual of Mental Disorders, DSM-IV-TR, Fourth Edition” except for:
(i) Diagnostic codes 317, 318.0, 318.1, 318.2, 319; Mental Retardation;
(ii) Diagnostic codes 315.00, 315.1, 315.2, 315.9; Learning Disorders;
(iii) Diagnostic codes 302.4, 302.81, 302.89, 302.2, 302.83, 302.84, 302.82, 302.9; Paraphilias;
(iv) Diagnostic codes 302.85, 302.6, 302.9; Gender Identity Disorders in Adults. This exception does not extend to children and adolescents 18 years of age or younger;
(v) Diagnostic codes V15.81 through V71.09; “V” codes. This exception does not extend to children 5 years of age or younger for diagnostic codes V61.20; Parent-Child Relational Problem through V61.21; Neglect, Physical Abuse, or Sexual Abuse of Child, and V62.82; Bereavement.

A few observations are in order. First, the committee agreed to use the DSM-IV-TR (revised in 2000) as the document which formed the basis for coverage decisions. This manual is the "Bible" in psychological/psychiatric circles, and the use of it in Oregon follows that in other states which have adopted various kinds of mental health parity statutes. Second, instead of giving carte blanche to consumer advocates, the committee decided to whittle away at a few categories. I will speak of these limitations in the next essay. Finally, the law as well as the administrative rule left unclear what kinds of treatment the insurers had to cover when these conditions were in view. For example, autism, which is included as one of the "mental or nervous conditions" covered by the statute, is considered to be a "non-curable" disorder. Nevertheless, many therapies are used regularly with persons with autism. Among these are chelation, gluten- and casein-free diets, vitamin B-6 and B-12 therapies, and expensive behavior modification curricula. It will be the approach of the insurers, when this legislation and the rule come online in Jan. 2007, that these treatments are "non scientific" or don't produce predictably positive results and thus ought not to be covered. I see legal issues arising in the future....

The next essay discusses briefly some of the excluded conditions.

2066