DOL Fact Sheet: FY 2018 MHPAEA Enforcement (Sept. 5, 2019); An Introduction: DOL MHPAEA FY 2018 Enforcement Fact Sheet (Sept. 5, 2019); Appendix: MHPAEA Violation Guidance Compendium (Sept. 5, 2019)
The DOL has issued a fact sheet summarizing its 2018 mental health parity enforcement activity. Released with recent FAQ guidance (see our Checkpoint article), the fact sheet and its accompanying introduction and appendix detail the agency’s enforcement strategy, explain the investigation process, and describe examples of its 2018 enforcement actions. Here are highlights:
Enforcement Strategy. Noting its limited enforcement resources, the DOL explained that it works with insurers and other service providers (such as TPAs) to obtain voluntary global corrections when a violation relates to plan provisions or operations affecting multiple health plans. Thus, compliance is achieved for all the affected plans, not just the plan under investigation. The introduction also notes that the DOL uses specialized teams to evaluate compliance consisting of specialists in medical claims data review and analysis, economists, attorneys, and outside experts.
Investigation Process. The fact sheet explains that the DOL receives inquiries from plan participants who believe their mental health or substance use disorder benefits were improperly denied. If DOL staff are unable to obtain voluntary compliance, a formal investigation may be opened. During the investigation, plans are reviewed for compliance with all aspects of the parity rules including the requirements for quantitative treatment limitations (QTLs) and nonquantitative treatment limitations (NQTLs). (The report’s appendix includes links to applicable guidance.) If violations are found, the plan must remove noncompliant plan provisions and pay any improperly denied benefits.
Examples of Enforcement Actions. In 2018, the DOL closed 115 mental health parity investigations involving violations in six categories—annual dollar limits; aggregate lifetime dollar limits; provision of benefits in all six permitted classifications (see our Checkpoint article); cost-sharing requirements; treatment limitations (including NQTLs); and cumulative financial requirements and QTLs. The fact sheet contains five examples of the 21 mental health parity violations cited in 2018. In one case, a plan imposed a higher copayment for mental health and substance use disorder outpatient visits than for medical/surgical outpatient visits. The DOL required the plan to refund the difference to affected participants over a five-year period—resulting in $26,000 in reimbursements to 94 participants—and remove the impermissible financial requirement for future years. In another case, the DOL required a plan to reimburse claims it had denied due to a preauthorization requirement applicable only to mental health and substance use benefits. The plan paid over $20,000 to affected participants and removed the offending provision. And in another example, a plan was required to remove a provision requiring measurable goals and progress for continued coverage of mental health and substance use disorder treatment.
EBIA Comment: The DOL notes that while its global correction approach has resulted in fewer investigations than in previous years (see, for example, our Checkpoint article on the 2017 enforcement report), those investigations have produced more impactful results. Also, because many investigations span more than a year and are reported only in the year in which they are closed, the 2018 report by itself does not provide a complete picture of the DOL’s enforcement activity. Plan sponsors, advisors, and insurers should take notice of the agency’s steadfast commitment to mental health parity enforcement and take steps to ensure compliance. For more information, see EBIA’s Group Health Plan Mandates manual at Sections IX.A (“What Is Mental Health Parity and Who Must Comply?”) 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.