New Mental Health Parity Guidance and Enforcement Efforts May Warrant a Deep Dive Into Plan Administration

The Department of Labor (DOL), the Department of the Treasury, and the Department of Health and Human Services (HHS) are making good on their promise to issue more guidance and to aggressively enforce the federal Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) by recently issuing a slew of new guidance, enforcement statistics, and promises of continued aggressive enforcement.

In light of this guidance and the departments’ ongoing enforcement focus, plan sponsors may want to make time for an in-depth analysis of their plans’ coverage of mental health and substance use disorder (SUD) benefits to ensure they comply with the MHPAEA, both in their written terms and in application. To really get at the heart of MHPAEA compliance, the analysis will likely involve more than a simple, “check-the-box” audit of plan provisions. It will likely entail working with the plan’s carriers, third party administrators, and consultants to dig deep into how plan provisions are actually administered and, in some cases, what clinical and scientific standards are applied to determine plan coverage.

The recent releases include proposed FAQs about the MHPAEA; a revised draft form for health plan participants, beneficiaries, and providers to request information about a health plan’s compliance with the MHPAEA; the DOL’s biennial MHPAEA report to Congress; a DOL fact sheet on enforcement statistics for fiscal year 2017; a 2018 MHPAEA self-compliance tool for use by plan sponsors; and HHS’ action plan for MHPAEA enforcement.

The MHPAEA requires health plans and insurers that provide mental health and SUD benefits to provide them on equal footing with medical and surgical benefits.  This means that the financial requirements and treatment limitations imposed on mental health /SUD benefits cannot be more restrictive than those applied to medical/surgical benefits. Plans must provide parity in terms of both quantitative (i.e., numerical) and non-quantitative treatment limitations. Quantitative treatment limitations (QTLs) include restrictions on the number of days, episodes, or treatments that are covered, and financial requirements such as copays and coinsurance. Parity between QTLs on medical/surgical benefits and QTLs on mental health/SUD benefits is assessed by means of a mathematical analysis prescribed in the MHPAEA regulations. Non-quantitative treatment limitations (NQTLs) are limits on the scope or duration of benefits for treatment that are not expressed numerically—for example, medical management techniques, provider network admission criteria, or “fail-first” (also known as “step therapy”) policies.

This new spate of activity surrounding mental health parity stems from the 21^st Century Cures Act. That 2016 law directed the departments to issue additional guidance on mental health parity and to improve coordination between federal and state agencies in enforcement of the law.

Proposed FAQs

In an effort to provide additional guidance on compliance with the MHPAEA, the departments jointly issued a new set of proposed FAQs. Because NQTLs can, in application, be a murkier concept than QTLs, much of the new guidance focuses on NQTLs. Unfortunately, the guidance doesn’t provide much in the way of black-and-white answers, particularly with regard to questions commonly raised by plan sponsors—for example, whether a health plan must provide coverage for applied behavior analysis therapy for the treatment of autism. Some of the highlights of the FAQs include:

• Exclusion of Experimental or Investigational Treatments: The departments confirm that a plan’s exclusion of experimental or investigational treatments is an NQTL under the MHPAEA that if imposed on mental health/SUD benefits must be applied equally to medical/surgical benefits. Further, even if a plan, on its face, applies the NQTL uniformly to both mental health/SUD and medical/surgical benefits, it nevertheless violates the MHPAEA if, in operation, it applies the NQTL more stringently with respect to mental health/SUD benefits than to medical/surgical benefits.
• Prescription Drug Dosage Limitations: The departments note that dosage limitations for prescription medications are NQTLs despite being expressed as a numerical limitation.  Further, if a plan follows professionally-recognized treatment guidelines in setting dosage limitations for medical/surgical conditions, it must apply comparable treatment guidelines and apply them no more stringently for mental health/SUD conditions.
• General Exclusions: According to the FAQs, an exclusion of all benefits for a particular condition is not a treatment limitation for purposes of the MHPAEA (for example, a general exclusion of all items and services to treat bipolar disorder, including prescription drugs). As the departments note, however, if the plan is insured, such a categorical exclusion may not be permitted under state insurance law.
• Provider Reimbursement Rates: The departments note that while the MHPAEA does not require a plan to pay identical rates to mental health/SUD providers as to medical/surgical providers, a plan’s standards for admitting a provider into its network is an NQTL. As such, if a plan does not reduce reimbursement rates for nonphysician providers of medical/surgical services, it cannot do so for nonphysician providers of mental health/SUD services.
• Disclosure of Provider Directories: The proposed FAQs point out that plans that are subject to the Employee Retirement Income Security Act of 1974 (ERISA) and use a provider network must provide a general description of the provider network in the plan’s summary plan description (SPD). The departments emphasize that an inaccurate or out-of-date provider network directory does not comply with that SPD requirement. (Note that, parity aside, the same SPD requirement would be violated if a plan’s medical/surgical provider directory was inaccurate or out-of-date.) The departments gave a green light to a plan’s use of a hyperlink or web address to access the up-to-date provider directory, as long as the DOL’s criteria for providing plan notices in electronic format are satisfied.

 

The departments invite the public to submit comments on the proposed FAQs. Comments must be submitted by June 22, 2018, to E-OHPSCA-FAQ39@dol.gov.

Draft Notice

The MHPAEA requires the plan administrator of a group health plan to make available to participants, beneficiaries, and contracting providers the criteria for medical necessity determinations for mental health/SUD benefits, as well as the reasons for any denial of mental health/SUD benefits, upon request. In 2017, the DOL issued a draft form to assist participants, beneficiaries, and their authorized representatives in making such a request. After making slight modifications to the form, the DOL has now released a revised draft of that form.

Report to Congress

The DOL’s 2018 report to Congress, entitled “Pathway to Full Parity,” reaffirms that mental health parity compliance by group health plans remains an enforcement priority for the agency.

Fact Sheet

The DOL’s fiscal year 2017 MHPAEA enforcement fact sheet cites numerous cases of DOL staff intervening with plans on behalf of health plan participants to obtain payment of previously-denied claims for mental health/SUD benefits. The DOL also noted that where its investigators uncover MHPAEA violations in a particular plan, it will expand its reach, implementing a “global correction,” by working with the plan’s insurance carrier or service provider to identify other plans with the same violation. It also noted that in fiscal year 2017, the DOL conducted 187 health plan investigations, resulting in 92 citations violations of the MHPAEA. (Nearly half of those violations concerned the plan’s imposition of NQTLs.)

Self-Compliance Tool

Finally, the DOL recently published a 2018 self-compliance tool, designed to help plan sponsors determine whether their group health plans comply with the MHPAEA.