2022 MHPAEA Report to Congress; EBSA News Release 22-89-NAT (Jan. 25, 2022)
The DOL, HHS, and IRS have issued a pointed report to Congress on the pervasive failure by group health plans to comply with the Mental Health Parity and Addiction Equity Act (MHPAEA). The report is required by the Consolidated Appropriations Act, 2021 (CAA), which expanded mental health parity compliance obligations by requiring health plans and insurers that impose nonquantitative treatment limitations (NQTLs) on mental health or substance use disorder benefits (such as restrictions based on facility type) to perform and document (and provide upon request) comparative analyses of the NQTLs’ design and application (see our Checkpoint article). Intended to satisfy the new CAA annual reporting requirement as well as the existing DOL biennial reporting requirement about general MHPAEA compliance, the 2022 report highlights the agencies’ MHPAEA resources and enforcement efforts and details the struggles to interpret, implement, and enforce the NQTL comparative analysis requirement. The DOL also separately released its 2021 MHPAEA Enforcement Fact Sheet (see our Checkpoint article).
The report to Congress emphasizes that health plans and insurers are failing to deliver parity in mental health and substance use disorder benefits and identifies the top noncompliant NQTLs. These include limitation or exclusion of applied behavior analysis (ABA) therapy or other services to treat autism, restrictive billing requirements, limitation or exclusion of medication-assisted treatment (MAT) for opioid use disorder, preauthorization or precertification requirements, and limitation or exclusion of nutritional counseling. Between April and October 2021, the DOL requested and received NQTL comparative analyses from 156 plans and insurers, and none contained sufficient information upon initial receipt. While the review process is ongoing and no final determinations have been issued, the report highlights that the DOL ultimately obtained sufficient information to make initial determinations of noncompliance for 30 plans and insurers in connection with 48 impermissible NQTLs. The report outlines a long list of common deficiencies among the analyses received thus far, including a reliance on conclusory assertions that lack specific supporting evidence or detailed explanation.
EBIA Comment: This report serves as a wake-up call to health plan sponsors, insurers, and advisors, a significant number of which, according to the report, were unprepared to provide the required comparative analysis when requested despite having imposed NQTLs for years. Stressing that “proactive and rigorous enforcement is vital,” the report recommends that Congress amend ERISA to authorize the DOL to assess civil monetary penalties for parity violations and directly pursue parity violations by entities that provide administrative services to ERISA group health plans (including health insurers that provide administrative services to ERISA plans and TPAs). For more information, see EBIA’s Group Health Plan Mandates manual at Sections IX.A (“What Is Mental Health Parity and Who Must Comply?”), IX.H (“Mental Health Parity Reporting Requirements”), and IX.J (“Mental Health Parity: Enforcement”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.E (“Coverage Limitations and Exclusions”).
Contributing Editors: EBIA Staff.