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New Equity Act Rule Supports Coverage of Testing for Substance Use Disorders

Nov 14, 2013 | | Definitions, Drug policy, Health Law, Law | No Comments

Under the new Mental Health Parity and Addiction Equity Act (Equity Act) regulations issued yesterday, insurance plans are explicitly prohibited from placing more restrictive requirements on laboratory testing used for substance use disorder (SUD) treatment than they place on laboratory testing for medical/surgical treatment.[1]

Historically, health care providers have discriminated against those with SUDs, often providing far less coverage of such conditions than the coverage offered for other conditions.[2] In efforts to make treatment more accessible, congress enacted the Mental Health Parity and Addiction Equity Act (Equity Act) in 2008. Under the Equity Act, if a plan offers both medical/surgical benefits and mental health or SUD benefits, restrictions placed on mental health or SUD benefits must not be applied more stringently than restrictions placed on medical/surgical benefits.[3]

Yet, providers continued to take advantage of the stigma surrounding addictive disorders by finding loopholes and exploiting ambiguities in the Equity Act and its regulations. For instance, under the Equity Act’s Interim Final Rule issued on February 2, 2010 by the Internal Revenue Service (IRS), the Department of Labor (DOL), and the Department of Health and Human Services (HHS), six classifications were created for which parity was to be given.[4] These classifications included inpatient, in-network; inpatient, out-of-network; outpatient, in-network; outpatient, out-of-network; emergency care; and prescription drugs.[5] Many insurers abused this regulation by excluding intermediate care and other services that did not fit neatly into one of these classifications, including testing.

SUD tests are used in all stages of substance-related disorder treatment, including diagnosis, active treatment, compliance, and maintenance.[6] Yet, many insurers typically only cover testing for SUD treatment when it is conducted using certain methods, under specific circumstances, with limited frequency, and for a predefined duration, which can interfere with a physician’s judgment. [7] In many instances, such limitations on coverage violate the Equity Act because these restrictions on testing for SUD treatment are often far more burdensome than the restrictions placed on testing for other medical conditions.


On November 13, 2013, the DOL, HHS, and IRS issued a final rule eliminating the ambiguities in the Interim Final Rule. Included in the new rule were sub-classifications that must also be given parity. One of these sub-classifications includes “all other outpatient items and services (such as . . . laboratory charges . .  .).”[8] Furthermore, in the summary of the rules, the agencies note that if a plan covers any one classification or sub-classification, it must cover all classifications or sub-classifications.[9] Therefore, insurance plans may no longer place more restrictive requirements on laboratory testing used in SUD treatment than they place on laboratory testing for medical/surgical treatment, and one more barrier to access of proper treatment has been removed.

[1] The plan must offer both medical/surgical and substance use disorder benefits in order to fall within this regulation. See 21 U.S.C. § 823(g)(2) (2012); 45 C.F.R. § 146.136(c)(3)(iii)(C).

[2] 78 Fed. Reg. 6820, 6820 (Nov. 13, 2013).

[3] 21 U.S.C. § 823(g)(2) (2012).

[4] 29 C.F.R. § 2590.712(c)(2)(iv).

[5] 29 C.F.R. § 2590.712(c)(2)(ii).

[6] Public Policy Statement On Drug Testing as a Component of Substance abuse treatment and Monitoring Programs and in other Clinical Settings, American Society of AddictionMedicine3 (2010).

[7] Drug Testing as a Component of Addiction Treatment and Monitoring Programs and in Other Clinical Settings, American Society of Addiction Medicine, Oct. 1, 2010, available at http://www.asam.org/advocacy/find-a-policy-statement/view-policy-statement/public-policy-statements/2011/12/15/drug-testing-as-a-component-of-addiction-treatment-and-monitoring-programs-and-in-other-clinical-settings; Medicaid Coverage for Substance Abuse and Related Services for Drug Court Clients, American University, available at http://www1.spa.american.edu/justice/documents/4143.pdf; Urine Drug Testing, Neighborhood Health Plan, Dec. 1, 2012, available at https://www.nhp.org/provider/paymentguidelines/Urine_Drug_Testing.pdf; Urine Drug Testing Coverage and Reimbursement Guidelines, June 2012, Health Plan.

[8] 45 C.F.R. § 146.136(c)(3)(iii)(C).

[9] 78 Fed. Reg. 68244 (Nov. 13, 2013).

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