DOL Fact Sheet: FY 2020 MHPAEA Enforcement; An Introduction: DOL MHPAEA FY 2020 Enforcement Fact Sheet (Jan. 15, 2021); Appendix: MHPAEA Violation Guidance Compendium
The DOL has issued a fact sheet summarizing 2020 mental health parity enforcement activity conducted by the DOL and (with respect to non-federal governmental group health plans) the Centers for Medicare & Medicaid Services (CMS). The fact sheet and its accompanying documents explain the investigation process, provide examples of enforcement actions closed during fiscal year 2020, and describe the agencies’ 2021 enforcement strategy. Here are highlights:
Investigation Process. The fact sheet explains that investigations typically stem from participant complaints. Participants speak with DOL benefits advisors who first seek to obtain voluntary compliance from a plan. If that fails, the agency may open a formal investigation involving the plan and its service providers. The goal is to obtain broad correction, not just for the plan under investigation, but for other plans that work with the service provider.
Enforcement Actions. In 2020, the DOL and CMS closed 129 mental health parity investigations resulting in 9 citations for violations in four categories—quantitative treatment limitations, nonquantitative treatment limitations (NQTLs), provision of benefits in all classifications, and market conduct. The investigations involved, among other things, excessive cost-sharing for mental health and substance use disorder benefits, impermissible waiting periods, impermissible limits on the number of outpatient mental health visits, and improper denial of claims for treatment of autism spectrum disorder. Self-insured health plans accounted for over two-thirds of the investigations. In the listed examples, plans were required to remove offending plan provisions, reprocess claims using permissible criteria, and reimburse participants for claims that were improperly denied.
2021 Enforcement Strategy. The DOL has chosen three areas to emphasize as part of its 2021 national enforcement initiative: (1) processes for determining whether provider reimbursement rates might indicate a MHPAEA violation, (2) accuracy of provider network directories, and (3) treatment limitations regarding autism spectrum disorder. The DOL points to its recent update of the MHPAEA self-compliance tool (see our Checkpoint article) as a significant step in furtherance of its enforcement approach.
EBIA Comment: The agencies’ ongoing commitment to mental health parity enforcement will be bolstered by recent legislation expanding the compliance obligations of plans imposing NQTLs (such as restrictions based on facility type) on mental health or substance use disorder benefits (see our Checkpoint article). Under the new law, plans and insurers must perform detailed comparative analyses of the design and application of any NQTLs and, beginning February 10, 2021, provide the analyses and other specified information to federal or state agencies upon request. (Agency requests may be random or in response to a complaint alleging a parity violation.) Plans determined to be noncompliant will be required to notify plan enrollees of the noncompliance, so plan sponsors and advisors should prepare now to respond to agency inquiries while we wait for further guidance. 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.