A proposal for comprehensive and specific essential mental health and substance use disorder benefits.

I. INTRODUCTION This Article analyzes the initial efforts of the Federal Department of Health and Human Services (HHS) to implement the essential mental health and substance use disorder services benefit required by section 1302(b)(1)(E) of the Affordable Care Act (ACA)1 and proposes the adoption of a comprehensive and specific essential mental health and substance use disorder benefit set. At a minimum, the benefit set should cover medically necessary and evidence-based inpatient and outpatient mental healthcare services, inpatient substance abuse detoxification services, inpatient and outpatient substance abuse rehabilitation services, emergency mental healthcare services, prescription drugs for mental health conditions, participation in psychiatric disease management programs, and community-based mental healthcare services. This Article builds on three previous articles that have proposed reforms of federal and state mental health parity laws and mandatory mental health and substance use disorder benefit laws. The first article in this series challenged the less comprehensive public and private health insurance benefits that historically have been available to individuals who have illnesses traditionally classified as mental and proposed changes to federal statutes and regulations governing Medicare, Medicaid, self-funded non-federal governmental health plans, small group health plans, large group health plans, and grandfathered health plans.2 The first article proposed extending federal mental health parity law and mandatory mental health and substance use disorder benefits to all public healthcare program beneficiaries and private health plan members.3 The second article in the series justified and proposed amendments to divergent state mental health parity laws and offered a uniform mental health parity law for consideration by state legislatures.4 The third article provided additional support for my earlier proposal to extend federal mental health parity law and mandatory mental health and substance use disorder benefits to all public healthcare program beneficiaries and private health plan members.5 The third article grounded such support in health-related doctrine outside the context of mental health insurance law (including disability discrimination law, civil rights and human rights law, health information confidentiality law, and child and adult health and welfare law) as well as international, national, state, and professional definitions of "health."6 The third article also contextualized remaining mental health benefit disparities in terms of the centuries-old mind-body problem and the stigma that continues to be associated with mental illness.7 At the time these three articles were written, HHS has not yet attempted to implement the essential health benefits provision in section 1302 of ACA (the "EHB Provision"), which requires exchange-offered qualified health plans, non-exchangeoffered individual health plans, non-exchange-offered small group health plans, Medicaid benchmark and benchmark-equivalent plans, and state basic health plans to cover at least ten general categories of health services.8 The ten required categories of services include ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services (including behavioral health treatment), prescription drugs, rehabilitative and habilitative services and devices, laboratory services, preventive and wellness services and chronic disease management, and pediatric services (including oral and vision care) (collectively, the "EHB Package").9 During the last year, HHS has taken initial steps to implement the EHB Provision. As discussed in more detail in Parts III.D and III.E, infra, HHS requested guidance from the Institute of Medicine (IOM) on the criteria and methods that should be used to determine and update the EHB Package.10 In response, the IOM formed the Committee on Defining and Revising an Essential Health Benefits Package for Qualified Health Plans ("Committee"). …