It's hard to find any elected officials on Capitol Hill who will come right out and criticize the proposed mental health parity law. Clear majorities of both the House and the Senate have signed on to the bill as cosponsors. Even President Bush gave it a passing thumbs up more than a year ago when visiting the home state of one of the bill's authors: the influential Republican Sen. Pete Domenici.
Then there is the ever-growing legion of lobbyists for groups that have joined forces to back the bill — some 300 at last count, including Washington powerhouses like the American Medical Association and all but one state medical association. And 83 percent of the public told pollsters for the pro-parity National Mental Health Association (NMHA) that the measure warranted support.
It's no wonder that many of the leaders in the push for parity are feeling confident going into the debate scheduled for later this year. "The indications are," says Marcia Goin, president of the American Psychiatric Association, "that this is the year."
Not a sure thing
That would make the outcome a no-brainer, right?
Wrong. Big majorities of lawmakers and a laundry list of health care backers were behind the bill last year, and it never had a prayer of getting out of committee, where House Republican leaders led by Dennis Hastert very carefully arranged for it to stay. The same goes for the year before, pushing Congress to allow a year-by-year extension of the more limited 1996 parity law in effect.
"The House leadership over here is very much an ally of the big insurance companies and the business community, and they are resolutely opposed to it," says Michael Zamore, policy adviser to Rhode Island Rep. Patrick Kennedy, one of the leading sponsors of the House bill. "Consequently, the House leadership is resolutely opposed and if the leadership doesn't want it to get to the floor...."
That's the Democratic picture of parity.
Not surprisingly, though, some of those "big business" interests have a somewhat different spin. They see a group of determined party leaders who would prefer to keep the bill under lock and key rather than open a Pandora's box filled with an explosively expensive mandate.
"This isn't just parity, it's superparity," says Anthony J. Knettel, vice president for health affairs for ERIC, the ERISA Industry Committee, which represents 110 of the biggest companies in the U.S. The way the legislation is written, he adds, homing in on one of the biggest stumbling blocks parity backers have faced, companies would be required to cover every mental condition listed in DSM-IV, the massive Diagnostic and Statistical Manual of Mental Disorders that outlines everything from schizophrenia to jet lag.
"Essentially, it's an open-ended list," says Knettel, as DSM-IV can be amended to include new conditions at any time.
Knettel is far from alone in lobbying against the bill. The American Association of Health Plans, which has consistently protested the high costs associated with state and federal health care mandates, is on record against it. "We believe in the importance of mental health benefits, but we oppose the Senate bill because it would interfere with the ability of employers to design and customize health benefits for their employees," AAHP President Karen Ignagni told the New York Times when the issue surfaced in 2001.
Business groups from the National Association of Manufacturers to the U.S. Chamber of Commerce have made common cause in opposing the bill. And so far, they have been consistently successful in staving off a decisive vote.
Passing parity wasn't supposed to be this hard. Early on, Domenici and the late Democratic Sen. Paul Wellstone — both powerful politicians who had personally witnessed a close family member struggle with mental illness — had staked out the moral high ground by asserting that managed care companies needed to treat mental health in exactly the same way they handled regular medical conditions.
There was sound science to back up the proposition that a growing list of drugs could treat these disorders. And it was clear to them that managed care policies that hit the mentally ill with restricted benefits, higher copayments, and deductibles were inherently unfair. Those policies, say mental health advocates, inevitably ended up preventing huge numbers of people from getting the care they need. And these are conditions that afflict millions of Americans.
As for the DSM argument, proponents have consistently maintained that the opposition was blowing the point way out of proportion. The bill, says Ralph Ibson, government affairs chief of the NMHA, encompasses "any condition in the DSM when there's been a determination that treatment of that condition is medically necessary as defined by the insurance plan."
That simple line of reasoning and the big grassroots constituency that exists for parity has made this bill a tough law for politicians to take a stand against.
"This seems like a bill on which the merits are so strong it is surprising that it fails at the eleventh hour," says Ibson. "I think what we're looking for now is to see people sitting around the table and come to terms rather than just ignore it, which has been the case."
Specifically, congressional aides close to the talks say that there's a compromise in the works. Supporters are willing to drop the DSM link and fall back to a new definition of parity, one which requires plans to treat mental health the same way they would treat a physical ailment, provided it was a condition they already covered — like manic depression or schizophrenia.
"That sweeps away the whole jet lag attack that employers and insurers have used for the past year and a half," says one lobbyist close to the discussions.
The Senate has backed this bill before, and parity backers are betting that the DSM compromise and solid support there will give the bill plenty of momentum when it winds up at the House.
"I don't know if they want to go into this election saying no to this bill," says Zamore about House leaders. "Groups will be vocal during this election year. I certainly wouldn't put a lot of money down that the House leadership would suddenly warm to this bill. But a compromise might be workable."
But fixing this bill for passage this year will still be anything but easy.
The election year gambit, for example, cuts both ways. While President Bush's health policies have been roundly criticized by Democratic contenders for the White House, he's on record as a supporter of parity. And elections this year will keep the legislative season short, with legislators headed home early to work their own campaigns.
Even with an agreement to drop the DSM, backers are going to find that opponents still have a full file of arguments against parity.
"While that's a significant change," says Knettel, "I don't think that changing that one thing would likely result in the business community being sympathetic to another broad parity mandate."
Another argument against: Parity legislation uses broad language to prohibit treatment limitations or financial restrictions, says Knettel. If you read the fine print of the bill, he asserts, companies may well be prohibited from using carve-out behavioral management groups to oversee treatment for mental health. And while he agrees that a lot of those behavioral management outfits are supporting this bill, most don't understand that it threatens their very existence.
Also, managed care organizations routinely handle various types of care differently. Physicians are not paid the same way as physical therapists. Therapy sessions are commonly limited and doctors' visits are not. Surgical and specialty care have their own set of rules to contend with. Says Knettel: "Do they have to provide the most generous levels of cost sharing? The least generous? A weighted average? There's literally not any way to know how to comply."
While Congress has been tied up in legislative knots over the issue, state governments have often been swifter to act. Alaska, Texas, Maryland, Minnesota, New Hampshire, Rhode Island, and Vermont have all adopted mental health parity bills. And Washington's state legislature is preparing to debate a bill that would add them to the roster.
Altogether, about three dozen states have put mental health parity laws on the books, with health care costs rising a tiny amount as a result. And supporters point to the state experience as real-world evidence to support the Congressional Budget Office's estimate that parity at the federal level would push average costs up by only about 1 percent.
In some of those cases, Knettel responds, states are defining six or eight different specific conditions that have to be treated equally, which is fairly easy to comply with.
Even though many of the companies in the ERISA Industry Committee are self-insured and operate under an ERISA exemption, the practical realities of contracting for care — where few MCOs are willing to set up separate programs for ERISA and non-ERISA companies — leave most of these operations exposed to the state legislation. But if Congress passes parity, insists Knettel, those state laws will still be in effect, leaving big companies with national operations complying with dozens of parity rules, rather than just one.
This is also a no-win proposition for workers, says Knettel. Anytime a mandate is handed down, employees are likely to lose some other unprotected benefit, says Knettel, who testified on the subject last summer in front of the Federal Trade Commission.
Parity supporters have heard it all before. And they know that whatever bill comes out of the Senate this year will have plenty of well organized and extremely well connected opposition lying wait in the tall grass of the House.
But with every passing year, parity gains new supporters, moving steadily closer to what many believe is the inevitable passage of the bill.
"It's just the way it works," says one pro-parity lobbyist. "I've either been lobbying in Congress or from outside, and most bills take multiple years to pass. Congress is a very conservative institution. It requires building consensus to say, 'OK, we'll do it.'"
That means this year could be the year for parity. At the very least, supporters say they'll stick with this bill until victory is achieved, whether that's now or later. Opponents are no less committed to leaving this law in perpetual limbo.