MHPAEA Comparative Analysis Report to Congress (July 2023); DOL Fact Sheet: FY 2022 MHPAEA Enforcement
The DOL, HHS, and IRS have released their second report to Congress on the agencies’ review of comparative analyses required by the Consolidated Appropriations Act, 2021 (CAA, 2021) and the Mental Health Parity and Addiction Equity Act (MHPAEA). The CAA, 2021 requires health plans and insurers that impose nonquantitative treatment limitations (NQTLs) on mental health or substance use disorder (MH/SUD) benefits to perform and document comparative analyses of the NQTLs’ design and application, and requires the agencies to annually report to Congress on the results of their comparative analysis reviews. A separately issued fact sheet summarizes DOL and CMS mental health parity enforcement activity during 2022, including comparative analysis and other examinations.
The report to Congress highlights the agencies’ MHPAEA enforcement efforts and details ongoing challenges in enforcing the NQTL comparative analysis requirement. Here are highlights:
- Common Deficiencies. Tables in the report summarize the types of NQTLs for which the agencies requested comparative analyses, including prior authorizations, exclusions of certain types of therapies (such as applied behavior analysis therapy for autism spectrum disorder), limitations based on likelihood of improvement, standards for provider network admission, and reimbursement rates for out-of-network providers. The report notes that even though plans and insurers were required to have NQTL comparative analyses completed by February 2021, many remain unprepared to provide the analysis when it is requested, and the analyses often fall short. Deficiencies noted in the prior report persist, including missing content elements, failure to adequately explain factors used in applying NQTLs, and insufficient data. Appendices to the report detail common deficiencies and provide examples of how some plans and insurers supplied additional information to cure deficiencies.
- Comparative Analysis Enforcement. During the periods covered by the report (which differ slightly by agency), the DOL issued 25 letters requesting comparative analyses, resulting in 22 initial determination letters and three final determinations of MHPAEA violations, with CMS issuing an additional five final determinations of violations. [EBIA Comment: Although fewer letters requesting comparative analyses were issued this year than last (perhaps due to the agencies’ focus on issuing guidance on the form and content of the required analysis), the report indicates that, since April 2021, the DOL has sent a total of 182 letters requesting comparative analyses for over 450 NQTLs.] As required by the CAA, 2021, the report identifies the plans and insurers that received final determinations of noncompliance. (The plan or insurer must notify all individuals enrolled in the plan within seven days of receiving a final determination of noncompliance.) The agencies also noted promising results in many instances, such as corrective action plans and agreements to make prospective changes with respect to impermissible treatment limitations. According to the report, changes agreed to by plans and their service providers due to the agencies’ efforts addressed 135 NQTLs and affected access to MH/SUD benefits for over 4 million participants and beneficiaries across more than 39,000 plans.
The fact sheet reflects DOL and CMS investigations closed during fiscal year 2022. The agencies closed 158 investigations and cited 25 violations. The fact sheet explains how the agencies conduct MHPAEA enforcement activities, including how plans are identified for investigation, and provides examples of investigations and results. Examples of violations that were investigated and corrected during the year include imposing preauthorization requirements for all MH/SUD benefits but only some medical/surgical benefits, excluding coverage for all MH/SUD residential treatment (with no comparable exclusion for medical/surgical treatments), and limiting benefits for nutritional counseling for MH/SUD conditions but not for diabetes (a medical/surgical condition). The fact sheet notes that investigators often work with plan service providers to obtain broad corrections for other plans in addition to the specific plan being investigated.
EBIA Comment: The report to Congress, the fact sheet, and the related news release emphasize the agencies’ focus on mental health parity issues—as further demonstrated by recently proposed regulations. The fact sheet’s Appendix lists MHPAEA guidance and resources to assist plans with 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?”), IX.H (“Mental Health Parity Reporting Requirements”), and IX.J (“Enforcement”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.E (“Coverage Limitations and Exclusions”).
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