Recently, the Department of Labor (DOL), Department of Health and Human Services (HHS), and the Department of the Treasury released their 2022 Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) Report to Congress.
Background and Introduction to the Report
The report notes that after President Joe Biden was inaugurated in 2021, the DOL, HHS, and Treasury have “made an unprecedented commitment to build on their longstanding efforts to advance mental health parity by making MHPAEA enforcement a top priority.” It continues, stating that while compliance assistance efforts continue to be an important part of those efforts, “feedback from stakeholders makes it clear that compliance assistance alone is not sufficient, and a greater emphasis on proactive enforcement is required.”
In 2021, the Consolidated Appropriations Act (CAA) amended the MHPAEA and added the requirement that plans and insurers must provide comparative analyses of their non-quantitative treatment limitations (NQTLs) to the DOL, HHS, and Treasury upon request and for the Departments to then determine whether the NQTLs comply with the MHPAEA.
The MHPAEA prohibits coverage limitations that apply more restrictively to mental health/substance abuse disorder (MH/SUD) benefits than for medical/surgical benefits. The Employee Benefits Security Administration (EBSA) and Centers for Medicare and Medicaid Services (CMS) have both committed to making MH/SUD parity a top enforcement priority for their agencies.
Report Updates
In 2021, EBSA started implementing a framework to enforce new requirements under the CAA by forming a task force that worked closely with agency leaders and regional offices. EBSA focused on four NQTLs in 2021: (1) preauthorization for inpatient services; (2) concurrent care review for inpatient and outpatient services; (3) out-of-network provider reimbursement rates; and (4) provider network admission and participation criteria, including reimbursement rates.
Under this initiative, EBSA issued 156 letters to plans and issuers requesting comparative analyses for 216 unique NQTLs across 86 investigations. All 156 plans and issuers responded. After reviewing the responses, EBSA issued 80 insufficiency letters for more than 170 NQTLs and 30 initial determination letters that identified 48 impermissible NQTLs. EBSA is continuing to assess the remaining responses received from plans and issuers.
HHS has primary enforcement authority over issuers in states that do not have authority to enforce or fail to substantially enforce MHPAEA (referred to as direct enforcement states) and non-Federal governmental health plans in all states.
Given the agency’s relatively limited jurisdiction and resources, CMS requested 21 comparative analyses from four non-Federal governmental plan sponsors and nine issuers in direct enforcement states between May and November 2021. Of the 21 comparative analyses, all were found to be insufficient after the initial review. Following CMS’ request for further information and review of supplemental responses, 14 comparative analyses remained insufficient, and two plans/issuers were found to have impermissible treatment limitations in effect. One plan did not submit a sufficient comparative analysis and was also found to have an impermissible separate treatment limitation in effect. This meant an initial determination of non-compliance was issued in 15 reviews. CMS made final determinations of no findings of non-compliance for three reviews and an additional determination of no findings of non-compliance after reviewing a corrective action plan submission, resulting in four total determinations of no findings of non-compliance as of December 3, 2021. CMS continues to assess the remaining responses from plans and issuers.
Recommendations
The report closes with recommendations in three areas: (1) recommendations to enhance enforcement; (2) recommendations designed to ensure the coverage of benefits for individuals; and (3) recommendations that would require group health plans and health insurance issuers to further evidence compliance.
When it comes to enhancing enforcement, EBSA believes that assessing civil monetary penalties for parity violations has the potential to strengthen MHPAEA protections. Additionally, the DOL recommended that Congress amend ERISA to provide the agency authority to directly pursue parity violations by entities that provide administrative services to ERISA group health plans.
As far as ensuring the coverage of benefits for individuals, DOL recommended another ERISA amendment, this time that the legislation “expressly provide that participants and beneficiaries, as well as DOL on their behalf, may recover amounts lost by participants and beneficiaries who wrongly had their claims denied in violation of MHPAEA.” The DOL, HHS, and Treasury also recommended that Congress review ways that telehealth and remote care services can be permanently implemented.
Finally, DOL, HHS, and Treasury recommend that Congress consider an amendment to MHPAEA that would ensure MH/SUD benefits are defined objectively and uniformly by using external benchmarks that are based in nationally recognized standards.