DOL Fact Sheet: FY 2021 MHPAEA Enforcement; Appendix: MHPAEA Guidance Compendium
The DOL has issued a fact sheet summarizing 2021 mental health parity enforcement activity conducted by the DOL and the Centers for Medicare & Medicaid Services (CMS). The fact sheet explains the investigation process and provides examples of enforcement actions closed during fiscal year 2021. Here are highlights:
Investigation Process. The fact sheet explains that investigations often 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 contract with the service provider.
Enforcement Actions. In 2021, the DOL and CMS closed 82 mental health parity investigations resulting in 15 citations for violations in three categories—quantitative treatment limitations, nonquantitative treatment limitations (NQTLs), and financial requirements. The investigations involved, among other things, improper reimbursement formulas; impermissible exclusion of applied behavior analysis therapy for autism; overly restrictive limitations on drug screening; out-of-network restrictions on residential mental health treatment; copay disparity; and inadequate access to mental health benefits. 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. In a notable settlement resulting from a 2021 DOL investigation, a large insurer that had imposed restrictive reimbursement criteria for mental health services agreed to pay $13.6 million in restitution to participants and beneficiaries plus over $5 million in penalties and attorney’s fees (see our Checkpoint article).
NQTL Comparative Analyses. CMS closed four NQTL comparative analysis reviews with no cited violations. However, the fact sheet indicates that it does not capture the DOL’s “significantly increased” enforcement actions with respect to the comparative analysis requirement because those investigations were ongoing and not closed during fiscal year 2021. (The Consolidated Appropriations Act, 2021, which requires plans to prepare comparative analyses of NQTLs and submit them to the agencies upon request (see our Checkpoint article), also directs the DOL, HHS, and IRS to each collect a minimum of 20 analyses per year.) The agencies’ activity in this area is detailed in the 2022 MHPAEA Report to Congress (see our Checkpoint article).
EBIA Comment: The agencies continue their steadfast commitment to mental health parity enforcement and have provided numerous resources to assist plans in their compliance efforts. Many of these resources are listed on the fact sheet’s Appendix, including the biennially updated MHPAEA Self-Compliance Tool (see our Checkpoint article). 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.