Can Our Health Plan Impose a Fail-First Requirement for Opioid Treatments?
On Thursday, October 26, President Trump declared the opioid crisis impacting America a public health emergency. The opioid crisis has also been on the minds of employers, who must consider how opioid treatments are covered under their benefit plans.
Question: Our health plan requires a participant to have failed at counseling as a treatment for opioid use disorder before it will authorize coverage for medication-assisted treatment (MAT), which involves both counseling and medication and is more costly. Would this be considered an impermissible “fail-first” requirement?
Answer: A “fail-first” requirement is a health plan provision that excludes coverage of higher-cost treatments until a participant demonstrates that a lower-cost treatment is ineffective. Your plan’s requirement that a participant has failed at counseling alone before the plan will pay for MAT would be considered a fail-first requirement.
When applied to benefits for substance use disorders such as an opioid use disorder, a fail-first requirement is a treatment limitation that must comply with the federal mental health parity rules, which are also addressed under the Affordable Care Act. To ensure compliance, your plan can impose a fail-first requirement on MAT coverage for opioid use disorder only if certain conditions are met. The processes, strategies, standards and other factors considered by the plan in designing and imposing the requirement must be comparable to — and applied no more stringently than — those used in applying fail-first requirements to medical/surgical prescription drug benefits.
Thus, if your plan doesn’t impose fail-first requirements for medication for medical/surgical conditions, but comparable standards and other factors indicate that such requirements would be appropriate, the MAT fail-first requirement won’t be permitted. This is because it would be a treatment limitation that the plan applies more stringently to a substance use disorder condition than to medical/surgical conditions. The disparity would violate the mental health parity rules unless an exemption (such as the increased cost exemption) applies.