therapy Archives - The National Law Forum

The recent WSJ article about employer-provided in-office therapy sessions raises some good points about destigmatizing mental health in the workplace and promoting overall wellness generally. But the article also reminds us about the risks of blurring lines between an employee’s personal and professional life and the potential dangers inherent in the spillover of confidential (personal, medical, and other information) in the workplace. I have written previously about the beneficial role performance evaluations may have as “talk therapy” in an employee’s career based upon the learning that comes with balanced feedback. But it seems to me that true talk therapy – undertaken by a licensed and trained professional in an appropriate diagnostic setting – does not belong in the workplace.

The article features an employer who provides an annual benefit of a dozen free on-site therapy sessions to its employees. While it is commendable to care about the whole employee, providing on-site therapy touches upon a few somewhat sensitive employment topics. The first concerns confidentiality of health information, which includes an employee’s decision to seek (or even not seek) medical treatment. The employer in the article was reported to have taken steps to provide a separate location for the therapy sessions so employees did not encounter each other during on-site therapy visits, as well as other privacy preservation measures. But the simple fact is that confidentiality is hard to guarantee for on-site employment activities. And even though GenX employees (and the generation of workers who follow them) do think differently about mental health and wellness than the generations preceding them, there is a real risk that an employee’s use of this benefit will become the topic of what used to be known as water cooler – now Slack – talk.

The other employment risk on-site therapy poses is the potential use of information that is disclosed during a therapy session. Ethical, licensing and medical rules govern what a therapist must and must not do with information learned about a patient, but what about information the therapist learns about an employer? This is particularly a concern if the information source and content is confirmed by several different employees and might be information that merits action (such as information suggesting that a manager is engaging in harassing or other actionable or illegal conduct). There is a reason employers follow guidelines when reports or complaints are made concerning such conduct. It is unclear how those guidelines should be followed if the contents of a therapy session are supposed to remain confidential, for good legal, therapeutic and ethical reasons.

It seems to me a far better approach for employers wishing to explore this benefit is to provide employees with a set amount of money (perhaps as part of a tax-advantaged benefit plan ) that the employee is encouraged to use at the employee’s discretion as part of well-being program designed to support all aspects of health (mental, physical and even financial fitness). That way therapy can be encouraged and supported, but kept separate in all other respects from the workplace. Therapy for all may be an excellent idea, but conducting it outside the confines of the workplace seems like a better one.

For more news on Employer Provided Therapy, visit the NLR Labor & Employment section.

This post continues our consideration of comments submitted in response to proposed regulations under the Mental Health Parity and Addiction Equity Act (MHPAEA).

Under current law, if a plan provides any mental health or substance use disorder (MH/SUD) benefits in any classification of benefits, benefits for that condition or use disorder must be provided in every classification in which medical/surgical (M/S) benefits are provided. Classifications for this purpose include inpatient, in-network; inpatient, out-of-network; outpatient, in-network; outpatient, out-of-network; emergency care; and prescription drugs. The proposed regulations modify this standard by providing that a plan does not provide benefits for MH/SUD benefits in every classification in which M/S benefits are provided unless the plan provides meaningful benefits for treatment for the condition or disorder in each such classification “as determined in comparison to the benefits provided for medical/surgical conditions in the classification.”

The term “meaningful benefits” is nowhere defined. The regulators nevertheless “recognize that the proposal to require meaningful benefits [ ] is related to scope of services.” “Scope of services” for this purpose generally refers to the types of treatments and treatment settings that are covered by a group health plan or health insurance issuer. The preamble to the proposed regulation invites comments on how the meaningful benefits requirement “would interact with the approach related to scope of services adopted under the 2013 final regulations.” The preamble of the 2013 final regulations addressed an issue characterized as ‘‘scope of services’’ or ‘‘continuum of care’’ but otherwise failed to provide any substance. Two examples from the proposed regulations do, however, give us a sense of what the regulators have in mind.

A plan that generally covers treatment for autism spectrum disorder (ASD), a mental health condition, and covers outpatient, out-of-network developmental evaluations for ASD but excludes all other benefits for outpatient treatment for ASD, including applied behavior analysis (ABA) therapy, when provided on an out-of-network basis. (ABA therapy is one of the primary treatments for ASD in children.) The plan generally covers the full range of outpatient treatments and treatment settings for M/S conditions and procedures when provided on an out-of-network basis. The plan in this example violates the applicable parity standards.
In another example, a plan generally covers diagnosis and treatment for eating disorders, a mental health condition, but specifically excludes coverage for nutrition counseling to treat eating disorders, including in the outpatient, in-network classification. Nutrition counseling is one of the primary treatments for eating disorders. The plan generally provides benefits for the primary treatments for medical conditions and surgical procedures in the outpatient, in-network classification. The exclusion of coverage for nutrition counseling for eating disorders results in the plan failing to provide meaningful benefits for the treatment of eating disorders in the outpatient, in-network classification, as determined in comparison to the benefits provided for M/S conditions in the classification. Therefore, the plan violates the proposed rules.

Notably, the newly proposed meaningful benefits requirement is separate from, and in addition to, the newly prescribed nonquantitative treatment limitation (NQTL) testing standards. These latter standards include a “no more restrictive” requirement, a “design and application” requirement and an “outcomes data and network composition” requirement. A handful of comments nevertheless urge the regulators to add scope of services to its non-exhaustive list of NQTLs. As a result, a plan’s scope of services would be subject to comprehensive NQTL testing. Or, put another way, they would be fed back into the NQTL testing loop. Using the first of the examples above, this would require that ABA therapy to be first compared to the treatment limitations imposed on some M/S benefits in each classification. But what benefits, exactly? The problem is that a plan’s scope of services – what types of treatments a plan will pay for and in what settings – is a high-level plan design feature and not an NQTL.

While reasonable minds can and do differ on much of the substance of the proposed regulations, we doubt that anyone would claim that they streamline or simplify compliance. Compliance with these rules is already complicated and expensive; if the final rule looks anything like the proposed regulations, compliance will only get more complicated and more expensive. The proposed meaningful benefits requirement is intended to prevent plans, as a matter of plan design, from satisfying the parity rules by offering nominal or insubstantial MH/SUD benefits when compared to similar M/S benefits in each classification. Treating a plan’s scope of services as itself a separate NQTL does not advance this goal.

Tag: therapy

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