Does a Texas health plan have to cover as many mental-health outpatient visits as physical ones?

TX AG Opinion GA-0674: Must a group health plan match mental-health and physical outpatient visits?

Plain-English summary

A state senator asked whether a group health plan must provide the same number of outpatient visits for serious mental illnesses as it does for physical illnesses. The question turned on Insurance Code section 1355.004, the state's serious-mental-illness coverage mandate.

The senator read section 1355.004(b)(2), which says mental-health outpatient visits must be covered "under the same terms" as outpatient visits for physical illness, to require a plan that offers more than 60 physical-illness outpatient visits to offer the same number for serious mental illness. He noted the Texas Department of Insurance did not use that interpretation; the Department's website described the mandate as 45 inpatient days and 60 outpatient visits.

The opinion agreed with the senator. Section 1355.004(a)(1)(B) requires coverage for "not less than" 60 outpatient visits, which sets a floor, not a ceiling. Section 1355.004(b)(2) requires those visits to be covered on the same terms as physical-illness outpatient visits, and a "term" is a provision, clause, or condition of the contract. Putting the two together, because subsection (a)(1)(B) establishes a minimum and subsection (b)(2) requires parity of terms, a plan that provides more than 60 outpatient visits for physical illnesses must provide the same number for serious mental illnesses.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Both Texas Insurance Code chapter 1355 and federal mental-health-parity law have changed since 2008. Confirm the current state and federal rules before relying on this analysis.

Who this opinion affected (as of 2008)

Group health plan issuers: The opinion read the mandate to require a plan offering more than 60 outpatient visits for physical illness to offer the same number for serious mental illness.

People with serious mental illness: The opinion treated the 60-visit figure as a minimum, so enrollees in richer plans were entitled to outpatient mental-health visits on par with physical-illness visits.

The Texas Department of Insurance: The opinion reached a reading different from the Department's website description, which framed the mandate as a flat 60-visit requirement.

Common questions

Did the AG say plans must match mental-health and physical outpatient visits?
Yes. The opinion concluded that a plan providing more than 60 outpatient visits for physical illnesses must provide the same number for serious mental illnesses.

Isn't the mandate just 60 visits?
60 is the floor. Section 1355.004(a)(1)(B) requires "not less than" 60, and section 1355.004(b)(2) requires parity of terms with physical-illness visits, so a more generous plan must extend the same generosity to mental-illness visits.

What does "under the same terms" mean here?
The opinion read "term" as a provision, clause, or condition of the contract, so the coverage conditions for mental-health outpatient visits must match those for physical-illness outpatient visits.

Did this apply to every health plan?
No. Chapter 1355, subchapter A applies only to the group health benefit plans described in section 1355.002, subject to the exception in section 1355.003.

Background and statutory framework

Chapter 1355, subchapter A of the Insurance Code governs group health benefit plan coverage for serious mental illness and related disorders as defined in section 1355.001, and applies only to the group plans described in section 1355.002, subject to the section 1355.003 exception (Tex. Ins. Code Ann. §§ 1355.001-.015 (Vernon 2008)). Section 1355.004(a)(1)(B) requires coverage, based on medical necessity, for not less than 60 outpatient visits per calendar year, and section 1355.004(b)(2) requires that an outpatient visit described in subsection (a)(1)(B) be covered "under the same terms as the coverage the issuer provides for an outpatient visit for the treatment of physical illness" (id. § 1355.004(a)(1)(B), (b)(2)). Because subsection (a)(1)(B) sets a minimum rather than a maximum, the opinion concluded section 1355.004(b)(2) requires plans that provide more than 60 outpatient visits for physical illness to provide the same number for serious mental illness.

Citations

Statutes:

• Tex. Ins. Code Ann. §§ 1355.001-.015 (Vernon 2008)
• Tex. Ins. Code Ann. § 1355.004(a)(1)(B); § 1355.004(b)(2)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0674
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0674.pdf

Original opinion text

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

October 28, 2008

The Honorable Rodney Ellis
Chair, Committee on Government Organization
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0674

Re: Whether section 1355.004(b)(2) of the Insurance Code requires group health plans that provide more than 60 outpatient visits for physical illnesses to provide the same number of visits for serious mental illnesses (RQ-0695-GA)

Dear Senator Ellis:

You ask whether a group health plan must provide the same number of outpatient visits for serious mental illnesses as it does for physical illnesses. Your question relates specifically to Insurance Code section 1355.004.

Chapter 1355, subchapter A addresses group health benefit plan coverage for serious mental illnesses and certain other disorders as defined in section 1355.001. See TEX. INS. CODE ANN. § 1355.001 (Vernon 2008). It "applies only to a group health benefit plan that provides benefits for medical or surgical expenses incurred as a result of a health condition, accident, or sickness, including [a list of group health benefit plans]." Id. § 1355.002; see id. §§ 1355.001-.015 (subchapter A of chapter 1355), 1355.003 (exception). Section 1355.004 provides as follows:

(a) A group health benefit plan:

(1) must provide coverage, based on medical necessity, for not less than the following treatments of serious mental illness in each calendar year:

(A) 45 days of inpatient treatment; and

(B) 60 visits for outpatient treatment, including group and individual outpatient treatment;

(2) may not include a lifetime limitation on the number of days of inpatient treatment or the number of visits for outpatient treatment covered under the plan; and

(3) must include the same amount limitations, deductibles, copayments, and coinsurance factors for serious mental illness as the plan includes for physical illness.

(b) A group health benefit plan issuer:

(1) may not count an outpatient visit for medication management against the number of outpatient visits required to be covered under Subsection (a)(1)(B); and

(2) must provide coverage for an outpatient visit described by Subsection (a)(1)(B) under the same terms as the coverage the issuer provides for an outpatient visit for the treatment of physical illness.

Id. § 1355.004; see id. § 1355.001(1) (defining "[s]erious mental illness").

You state that section 1355.004(b)(2) "clarifies that mental health outpatient visits must be covered 'under the same terms' as outpatient visits for physical illnesses" and that it "require[s] group health plans that provide more than 60 outpatient visits for physical illnesses to provide the same number of visits for serious mental illnesses." Request Letter, supra note 1, at 1. You also inform us that the Texas Department of Insurance (the "Department") does not employ this interpretation. See id.

Section 1355.004(a)(1)(B) requires coverage for "not less than" 60 visits for outpatient treatment, thus establishing a floor for the number of outpatient visits. TEX. INS. CODE ANN. § 1355.004(a)(1)(B) (Vernon 2008). Section 1355.004(b)(2) requires coverage for an outpatient visit described in section 1355.004(a)(1)(B) "under the same terms as the coverage the issuer provides for an outpatient visit for the treatment of physical illness." Id. § 1355.004(b)(2) (emphasis added). A "term" is a provision, clause, or condition in a contract. See BLACK'S LAW DICTIONARY 312-13, 1509 (8th ed. 2004) (defining "condition" and "term").

Section 1355.004(b)(2) expressly requires coverage for an outpatient visit described in subsection (a)(1)(B) on the same terms as for physical illness, and subsection (a)(1)(B) establishes a minimum but not a maximum. We accordingly conclude that section 1355.004(b)(2) requires group health plans that provide more than 60 outpatient visits for physical illnesses to provide the same number of visits for serious mental illnesses.

SUMMARY

Section 1355.004(a)(1)(B) of the Insurance Code requires a group health benefit plan to provide coverage, based on medical necessity, for not less than 60 visits per year for outpatient treatment of serious mental illness. Section 1355.004(b)(2) requires coverage for an outpatient visit described in subsection (a)(1)(B) on the same terms as for physical illness. Group health plans that provide more than 60 outpatient visits for physical illnesses must accordingly provide the same number of visits for serious mental illnesses.

Very truly yours,

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes:

1 Letter from Honorable Rodney Ellis, Chair, Committee on Government Organization, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Mar. 25, 2008) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].

2 See Mental Health Parity and Addiction Equity Act of 2008, Pub. L. No. 110-343, tit. V, subtit. B, § 512, 122 Stat. 3765, 3881 (2008) (providing for parity in treatment of mental illness with medical and surgical benefits in insurance plans).

3 We have found no rule incorporating the Department's construction of Insurance Code section 1355.004, but information posted on its internet site states that a group policy subject to section 1355.004 "must provide coverage for 45 days of inpatient treatment, and 60 visits for outpatient treatment ... for serious mental illness in each calendar year." TEXAS DEPARTMENT OF INSURANCE, ACCIDENT & HEALTH INSURANCE, TEXAS MANDATED BENEFITS/OFFERS/COVERAGES, INCLUDING CHANGES MADE BY THE 80TH LEGISLATURE at 10 (Sept. 2008), available at http://www.tdi.state.tx.us/hmo/documents/lhmanben.pdf (last visited Oct. 23, 2008).