Proposed Updates to 2020 MHPAEA Self-Compliance Compliance Tool: Request for Comments
The DOL has released a proposed update to its mental health parity self-compliance tool. Like the 2018 revision (see our Checkpoint article), this proposal is prompted by the 21st Century Cures Act’s directive to help improve compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA) by providing and updating biennially a publicly available compliance program guidance document (see our Checkpoint article). The MHPAEA generally requires parity between medical or surgical benefits and mental health or substance use disorder benefits in the application of (1) annual and lifetime dollar limits; (2) financial requirements (such as deductibles, copayments, coinsurance, and out-of-pocket maximums); (3) quantitative treatment limitations (such as number of treatments, visits, or days of coverage); and (4) nonquantitative treatment limitations (such as restrictions based on facility type). Comments on the proposal are requested by July 24, 2020. Here are highlights of the changes:
Compliance Examples. The proposal integrates guidance and examples from agency FAQs Part 39 (see our Checkpoint article), and revises existing examples to add an explanation of how plans and insurers can correct violations. New examples discuss plan exclusions of experimental treatments for autism spectrum disorder, restrictions on room and board for residential care for mental health and substance use disorders, and limitations on medication assisted treatment for opioid use disorders. Another example points out that if a plan covers prescription drugs for a particular mental health condition but excludes other benefits for that condition, the plan would be covering mental health or substance use benefits in one classification (prescription drugs) and would be required to provide mental health or substance use benefits with respect to that condition for each of the other five classifications for which the plan also provides medical and surgical benefits.
Internal Compliance Plans. An internal MHPAEA compliance plan is not required, but the proposal includes an outline of the characteristics of a successful compliance plan, including conducting training, retaining records, monitoring and reviewing compliance, and responding to and correcting detected compliance failures. Also included are examples of the types of records a plan or insurer should be prepared to provide in the event of a DOL investigation.
Warning Signs. Following on previous guidance of warning signs or red flags of possible impermissible treatment limitations (see our Checkpoint article), the proposal incorporates throughout additional examples of treatment limitations encountered in enforcement efforts that may be problematic under the MHPAEA. For example, the updated tool includes a warning about inequitable reimbursement rates established by comparison to Medicare, with an example of a plan or insurer that generally pays at Medicare reimbursement rates for mental health and substance use disorder benefits but pays more than Medicare reimbursement rates for medical and surgical benefits. An appendix includes a tool for comparing a plan’s reimbursement schedule to Medicare rates.
EBIA Comment: The updated self-compliance tool will be a valuable resource for MHPAEA compliance, and we look forward to it being finalized. Note that the proposed update does not include recent guidance on the interaction of MHPAEA and COVID-19 mandated coverages (see our Checkpoint article). For more information, see EBIA’s Group Health Plan Mandates manual at Section IX (“Mental Health Parity”). See also EBIA’s Self-Insured Health Plans manual at Sections XIII.C (“Federally Mandated Benefits”) and XIII.E (“Coverage Limitations and Exclusions”).
Contributing Editors: EBIA Staff.