Bargaining and Advocacy Tactics to Support Educators' Mental Health

Network Coverage: In-Network versus Out-Of-Network Care

To decrease costs and improve plan members’ health, insurers contract with and maintain a group of in-network participating providers, including doctors, hospitals, and labs. In-network providers agree to accept a pre-negotiated, and often lower reimbursement rate from the plan in

exchange for the volume of patients. Providers who are not in-network are considered out-of-network, and plans generally require members to pay more of the cost to use out-of-network providers.  When plans only have a limited number of in-network providers, members may have to seek more expensive (and potentially unaffordable) out-of-network care.

Where members must travel for care, particularly in rural areas, it is essential to bargain for expansive coverage of in-network providers. Without an expansive range of in-network providers, patients who must travel may experience large out-of-pocket expenses or find that their insurance does not cover such services. These expenses are incurred in addition to the travel costs.

Type of Health Plan Coverage

Coverage varies widely depending on the type of plan, whether it is a Preferred Provider Organization (PPO), Health Maintenance Organization (HMO), Exclusive Provider Organization (EPO), or High Deductible Health Plan (HDHP). When bargaining, ensure that the plan provides broad and comprehensive coverage of mental health services and that preventative and wellness care pursuant to the Affordable Care Act are also covered.

High deductible plans with a health savings account are required under federal law to have annual minimum and maximum deductible levels and minimum and maximum out-of-pocket levels.

While the Affordable Care Act prohibits plans from using a lifetime or annual dollar limit on essential health benefits, plans may still include restrictions on the number of services, visits, etc. to limit utilization. When bargaining, ensure that these restrictions do not place undue hardship on patients and make mental health services prohibitive.

Waiting Periods for Benefit Coverage

Waiting periods for benefit eligibility are generally negotiable. When bargaining, ensure that coverage for mental health services begins with the first day of employment.

Furthermore, when an educator returns from a leave of absence, benefits should commence the day the employee returns to work. In addition to the initial waiting periods, bargain for continuation of coverage for ten-month employees and their dependents during the ensuing months over the summer.

Out-of-Pocket Expenses

In most health plans, federal rules cap the amount the patient pays for covered benefits, which is called out-of-pocket expenses. Payments toward the deductible, copayments, and/or coinsurance count toward the cap, but some expenses, such as premiums, do not. When bargaining, your local may want to bargain a lower out-of-pocket maximum to ensure that out-of-pocket expenses do

not render mental health services cost prohibitive.  The allowed annual out-of-pocket maximum amount and additional resources as to what is not included in the calculation of an out-of-pocket maximum can be accessed at https://www.healthcare.gov/glossary/out-of-pocket-maximum-limit/.

In addition to the insurance coverage for the cost of services and travel, language can be bargained that requires reimbursement for out-of-pocket expenses so that additional funds are provided if the patient has related costs for mental health care services. This language could include the funds rolling over annually.

A Flexible Spending Account (FSA) can be used to offset health care costs such as deductibles, copayments, coinsurance, and some medications. An FSA is an account that the employee can put money into to use to pay for certain out-of-pocket health care costs. Since taxes are not paid on this money, the employee will save an amount equal to the taxes they would have paid on the money if set aside. Employers may make contributions to the FSA. Generally, in 2023, FSAs are limited to $3,050 per year per employer.

The employee generally must use the money in an FSA within the plan year, but your employer may offer one of two options:

1. It can provide a "grace period" of up to 2 ½ extra months to use the money in the FSA; or
2. For 2023, it can allow the employee to carry over up to $610 per year to use in the following year.

More information on FSAs

Employee Assistance Programs

Locals can bargain for an employer-provided Employee Assistance Program (EAP).  EAPs are designed to provide various free services to employees, including mental health supports. Employees’ use of EAPs must be entirely voluntary and confidential, and the use of EAP should not jeopardize any of the employees’ other rights.

An EAP supplements existing medical benefits and can provide for short-term counseling or other needs, especially if mental health appointments are cost-prohibitive or difficult to schedule.

Wellness Programs

Locals can also bargain for wellness programs. Workplace wellness programs can increase overall well-being, improve morale and workplace satisfaction, and provide mental health and stress relief support to educators.

Wellness programs should supplement existing medical benefits, and can include wellness classes, preventive care programs, nutrition information, and provider discounts for gym memberships and wellness/preventive screenings.

Telehealth Services

Telehealth services can be used to supplement and expand current medical benefits. Improvements in technology have made telehealth an effective, convenient way to provide health care, especially for mental health services.  

Wait times for some providers, like child psychiatrists, have decreased significantly in several states due to telehealth services, and students and parents do not have to miss school or work to travel to their mental health appointments.

Many mental health providers and members utilized telehealth during COVID, and it can be useful for members or their families with limited time. As such, bargaining efforts should also address telehealth coverage as it relates to mental health services.

The 2023 Consolidated Appropriations Act (hereafter referred to as “Omnibus”) further extended some telehealth services by allowing High Deductible Health Plans (HDHPs) to offer subscribers telehealth appointments before they’ve hit their deductibles through 2024. Congress first allowed HDHPs to pay for virtual visits in the March 2020 CARES Act.

This benefit expired at the end of 2021 before Congress passed another extension in March, where the benefit would have expired on December 31, 2022. The Omnibus provides HDHP participants coverage for telehealth services without requiring them to first meet the minimum required deductible and allows HDHP beneficiaries to contribute to their HSAs.

Therefore, for HDHPs with plan years beginning after December 31, 2022, and before January 1, 2025, the Omnibus extends the safe harbor and allows HDHPs to continue to cover telehealth services on a first-dollar basis without disqualifying HDHP participants from making HSA contributions.

For Medicare beneficiaries, the Omnibus extends COVID telehealth flexibilities for an additional two years, through December 31, 2024, for services such as:

• Waiving the geographic restrictions and originating site requirements (Sec. 4113(a))
• Expanding the list of practitioners eligible to furnish telehealth services (Sec. 4113(b))
• Allowing telehealth services for Rural Health Clinics and Federally Qualified Health Centers (Sec. 4113(c));
• Delaying the in-person visit requirement before a patient receives mental health services furnished through telehealth and telecommunications (Sec. 4113(d));
• Allowing for telehealth services through audio-only telecommunications (Sec. 4113(e)); and
• Allowing telehealth to be used for a required face-to-face encounter before recertifying a patient’s eligibility for hospice care (Sec. 4113(f)).

Please note that while telehealth has expanded access, telehealth in schools must not be used to undermine needed or existing in-person services or to count against required staff ratios. To the contrary, telehealth in schools must supplement, not supplant, in-person services.

Prescription Medications

Bargaining should strive for comprehensive coverage for prescription medications utilized for mental health.

In addition, for those medications that can be obtained by mail delivery, which may be a lower cost option for dispensing medications, bargaining efforts should ensure that mail delivery is made available or preserved, particularly in rural areas.

Mental Health Parity

Review whether the plan complies with mental health parity laws. The Affordable Care Act amended the 2008 Mental Health Parity and Addiction Equity Act in 2010 to extend mental health parity to one of HHS’ essential health benefits categories.

The 2021 Consolidated Appropriations Act included a requirement that health plans and insurers conduct and document an analysis comparing treatment limits that apply to mental health and substance use disorder benefits to the limits for medical services. The Omnibus eliminated the opt out for self-insured behavioral health plans for non-federal governmental employees and their covered dependents.  

As such, the Omnibus eliminated the ability of health plans offered by non-federal government entities like states, municipalities, school districts, and other public systems to opt out of parity requirements. The Omnibus also included $50 million over five (5) years to help states enforce the federal parity provisions.  

It is estimated that over one million more children and families will gain improved mental health coverage through the elimination of this exemption. Prior to the Omnibus, self-insured state and local government plan sponsors (non-federal state and local government employees), regulated by the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS), had the ability to opt out of mental health and substance use disorder parity compliance each year by filing an annual election notice with HHS and CMS.  

For a list of plans that previously chose to opt out, the CMS list can be accessed here.

Now, pursuant to federal law, mental health and substance use disorder benefits and services must be comparable and/or less restrictive than those of medical/surgical benefits in terms of deductibles, copayments, co-insurance, treatment limits, and how treatment is accessed.

When bargaining, analyze how mental health treatment is accessed and under what conditions treatment is covered. Be aware of barriers, including prior authorization requirements and other requirements that might prevent a patient from obtaining mental health services.  
 

Paid Medical Leave 

All educators must have sufficient paid leave to take time off for mental health treatment, including for mental health appointments, which may need to be scheduled over an extended period of time. Locals can strengthen their leave provisions by adding bargaining language that 
advances employees’ medical leave at the beginning of the school year rather than accruing it during the school year.

Providing paid leave is particularly important to recruit and retain educators who often do not receive coverage, such as substitutes and bus drivers. Locals may also want to negotiate or work with employers to develop policies for sick leave banks so educators with little or no leave have access to some. 
 

Non-Discrimination Protections

Non-discrimination contract provisions or employer policies also provide educators with protection from various forms of discrimination. Specifically including the term “mental disability” as well as physical disability raises awareness for all employees.  

Along with any non-discrimination bargaining language, an explicit statement should be included that the contract is not intended to waive statutory rights. An example of that language may consist of:

Nothing in this Article shall constitute a waiver of a unit member’s rights to process a discrimination claim through an appropriate government agency, or a court of competent jurisdiction.

In addition, under the Americans with Disabilities Act, depending on the specific situation, an employee may be eligible for a reasonable accommodation for a mental disability. Accommodations could include flexible scheduling or temporary telework.

The Job Accommodation Network contains valuable information on various job accommodations. 
 

Privacy

Bargaining should address the issue of employers requiring documentation if employees take leave. Because absences of more than three full days may trigger coverage under the Family and Medical Leave Act (FMLA), some employers automatically seek medical documentation to support entitlement to FMLA.

Employers are allowed, but not required, to seek information from the employee’s medical provider. If such documentation is required, the FMLA limits the degree to which the employer can probe beyond the treating provider’s certification that leave is needed and requires the employer to keep this health information confidential.

Contract language will further protect privacy by stating that, for example, employees are not required to provide information about the mental health services received or sought. It is also important to be aware that FMLA protections only cover the confidentiality of health information relayed to an employer if it is in response to a request from the employer. Employees volunteering information or responding to questions by supervisors who have no need to know may not necessarily be considered confidential.

For these reasons, it is important to include language prohibiting supervisors from asking employees for information about their specific health conditions or care.