MHPAEA Enforcement Update, Compliance Tools Released & Proposed FAQs Issued
DOL and HHS Enforcement Highlights
The Department of Labor’s Employee Benefits Security Administration (“EBSA”) recently released its Fiscal Year 2017 Mental Health Parity and Addition Equity Act (“MHPAEA”) Enforcement Fact Sheet summarizing its enforcement activity. MHPAEA applies to most group health plans either directly or through the fact the plan offers Essential Health Benefits which include mental health and substance use disorder benefits. Simultaneously, EBSA along with the Department of Health and Human Services Centers for Medicare and Medicaid Services (CMS), released an Action Plan detailing past enforcement actions as well as planned enforcement and compliance assistance efforts.
EBSA closed 347 health investigations (187 of which were plans subject to MHPAEA) in FY 2017.
Of the 187 plans that were subject to MHPAEA, 92 were cited with violations.
CMS has completed five (5) investigations of non-federal governmental plans to detect MHPAEA violations and conducted one (1) Market Conduct Examination related to MHPAEA since the beginning of 2016.
EBSA announced there are now 400 EBSA investigators that review plans for compliance with ERISA; a 15% decrease in investigative staff compared to previous years. Although, it announced it is establishing dedicated MHPAEA enforcement teams to conduct investigations of behavioral health organizations and insurance companies. If the violation involves a service provider such as insurance carrier, it will seek global correction for all plans affected by requiring plans to remove offending plan provisions and pay any improperly denied benefits.
In 2017, HHS and DOL brought together federal experts and state insurance department officials to share best practices and conduct technical assistance on MHPAEA implementation. These Parity Policy Academies focused on advancing parity compliance in the commercial market and Medicaid/CHIP market.
Compliance Assistance Tools and Other Resources
To assist plans and issuers with compliance going forward, EBSA issued a MHPAEA Self-Compliance Tool which plans may use to determine whether the coverage offered to participants complies with MHPAEA rules. This tool, with its eight complex questions and step-by-step analysis, aims to give the user a basic understanding of MHPAEA rules and evaluate compliance generally. EBSA plans to update this tool with more comprehensive guidance on a biennial basis.
HHS and DOL plan to publish reports from the Parity Policy Academies held in 2017. Also, the HHS-Substance Abuse and Mental Health Services Administration (SAMHSA), in conjunction with EBSA, is developing a “clear language” tool to provide families and caregivers with important information and resources to actively support the individuals in their care. SAMHSA is also developing a tool kit to help state insurance regulators, behavioral health authority staff, insurance executives and human resource professionals develop a basis for understanding Federal parity law and regulations.
HHS plans to continue updating its Parity Portal (https://www.hhs.gov/programs/topic-sites/mental-health-parity/index.html) which is a resource to help consumers to determine if they have experience a MHPAEA violation, solve MHPHAEA coverage issues, file complaints, and submit an appeal.
EBSA and CMS plan to release information on enforcement efforts and action plans annually.
Proposed MHPAEA FAQs Issued
The Departments of Labor, Health and Human Services and Treasury issued proposed FAQs providing implementation guidance on the Mental Health Parity and Addiction Equity Act (MHPAEA). Specifically, the FAQs provide helpful clarification as to Non-Quantitative Treatment Limits (NQTL) that trigger MHPAEA violations and guidance on MHPAEA’s disclosure obligations.
MHPAEA applies to:
Employers with more than 50 employees offering group health plan coverage, insured or self-funded, that includes any Mental Health or Substance Use Disorder (MH/SUD) benefits.
Non-grandfathered insured plans, including coverage in the small group health plan market.
Requires that if a plan provides MH/SUD benefits in any classification, those benefits are provided in every classification in which medical/surgical benefits are provided.
Prohibits a plan from imposing a financial requirement or Quantitative Treatment Limit (QTL) on MH/SUD benefits in any classification that is more restrictive than the predominant financial requirement or QTL of the same type applied to substantially all medical/surgical benefits.
A financial requirement includes copays, deductibles, cost-sharing, coinsurance and out-of-pocket maximums.
A QTL means annual, episode and lifetime days and/or visit limits (e.g., number of treatments, visits or days of coverage).
Prohibits a plan from imposing a NQTL on MH/SUD benefits in any classification unless, under the terms of the plan as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits in a classification are comparable to, and are applied no more stringently than, those used in applying the limitation with respect to medical/surgical benefits in the same classification.
Non-Quantitative Treatment Limits
The guidance provides detailed examples of various plan designs and operations that may violate MHPAEA.
Exclusion for Experimental Treatment, Autism, ABA Therapy
In Q/A-2, a plan identifies Autism as a MH condition.
The plan denies ABA therapy (used to treat some children with autism) as experimental.
Pursuant to the plan’s written terms, experimental and/or investigative treatment for both MH/SUD and medical/surgical benefits is not covered. The plan states that when no professionally recognized treatment guidelines define clinically appropriate standards of care for the condition, and fewer than two randomized controlled trials are available to support the treatment’s use with respect to the condition the treatment for the condition is considered experimental (and therefore not covered by the plan).
The Departments conclude denying ABA treatment as experimental violates MHPAEA as the exclusion for treatment of ABA therapy is a NQTL that is imposed more stringently on MH/SUD because ABA therapy meets professionally recognized treatment guidelines and the requisite number of randomized controlled trials support the use of ABA therapy to treat children with Autism Spectrum Disorder.
Plans may impose dosage limits as a medical management technique with respect to prescription drug coverages. Such limits are NQTLs.
The Departments’ regulations require that the processes, strategies, evidentiary standards, or other factors used in applying an NQTL to MH/SUD prescription drug benefits (in this case, a dosage limit on buprenorphine to treat opioid use disorder) must be comparable to and applied no more stringently than the processes, strategies, evidentiary standards, or other factors used in applying dosage limits to prescription drugs to treat medical/surgical conditions.
If the plan follows the dosage recommendations in professionally-recognized treatment guidelines to set dosage limits for prescription drugs in its formulary to treat medical/surgical conditions, it must also follow comparable treatment guidelines, and apply them no more stringently, in setting dosage limits for prescription drugs, including buprenorphine, to treat MH/SUD conditions.
Provider Reimbursement Rates
While a plan is not required to pay identical provider reimbursement rates for medical/surgical and MH/SUD providers, a plan’s standards for admitting a provider to participate in a network (including the plan’s reimbursement rates for providers) is an NQTL. In Q/A-7, where the plan reduces reimbursement rates for non-physician practitioners providing MH/SUD services but does not have a comparable process for non-physician medical/surgical practitioners, the plan violates MHPAEA.
A plan provides benefits for the treatment of eating disorders but excludes all inpatient, out-of-network treatment outside of a hospital setting for eating disorders, including residential treatment (which it regards as an inpatient benefit). FAQ-9 makes clear such an exclusion violates MHPAEA because such a restriction based on facility type is a NQTL and it is being more stringently applied to a MH/SUD condition (eating disorder) than other medical/surgical conditions by excluding residential treatment when no such exclusion applies to other medical/surgical benefits.
Other NQTL Examples
Q/A-3 provides an example of an impermissible NQTL when the plan (in operation) reviews and covers certain treatments for medical/surgical conditions that have a “C” rating on a treatment-by-treatment basis but denies all benefits for MH/SUD treatments that have a rating of “C” or below.
The fact the plan may deny some treatment for medical/surgical benefits with a “C” rating does not negate the fact a more stringent unconditional exclusion applies when a “C” treatment is requested for a MH/SUD condition.
Q/A-5 provides an example of a plan with a blanket exclusion for all treatment (including prescription drugs) associated with bi-polar disorder. In this example, such an exclusion does not violate MHPAEA. However:
If coverage is insured, such an exclusion may violate state mental health parity rules that are more stringent than what federal law requires (including whether such benefits constitute an essential health benefit under the applicable state benchmark plan).
This guidance does not address whether such exclusion for treatment of bi-polar disorder raises other issues in Federal law, including possible claims under the ADA.
Q/A-6 illustrates how a step-therapy plan design (commonly known as “step therapy protocols” or “fail-first policies”) is an NQTL and a more stringent standard that required two attempts at out-patient treatment to be eligible for in-patient, in-network SUD benefits versus a one attempt requirement at outpatient treatment to be eligible for in-patient, in-network medical/surgical benefits is an impermissible NQTL
Q/A-8 addresses network adequacy, generally applicable to insured plans and the carriers offering insured coverage.
Q/A-10 provides an emergency room care scenario and whether the benefits being received are for medical/surgical or MH/SUD when there is a physical injury that may result from a MH/SUD condition.
Applicable MHPAEA Disclosures
The criteria for medical necessity determinations with respect to MH/SUD benefits must be made available by the plan administrator or the health insurance issuer to any current or potential participant, beneficiary, or contracting provider upon request.
The reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits must be made available to participants and beneficiaries.
To comply with ERISA’s document request and claims appeals rules, plans must include information on medical necessity criteria for both medical/surgical benefits and MH/SUD benefits, as well as the processes, strategies, evidentiary standards, and other factors used to apply an NQTL with respect to medical/surgical benefits and MH/SUD benefits under the plan.
FAQs 11-12 provide the following guidance:
If an ERISA-covered plan utilizes a network, its SPD must provide a general description of the provider network. The list of providers in that SPD must be up-to-date, accurate, and complete (using reasonable efforts). The list may be provided as a separate document that accompanies the plan’s SPD if it is furnished automatically and without charge and the SPD contains a statement to that effect. An out-of-date provider directory is not permissible.
ERISA plans may provide a hyperlink or URL address in enrollment and plan materials for a provider directly where, among other things, MH/SUD providers can be found.
These FAQs, as well as other recent MHPAEA enforcement guidance, indicates MHPAEA remains a top enforcement priority for the Departments. Employers should review these proposed FAQs and may wish to evaluate their plan(s)’s MHPAEA compliance.
Fiscal Year 2017 Mental Health Parity and Addition Equity Act (“MHPAEA”) Enforcement Fact Sheet, https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/mhpaea-enforcement-2017.pdf
Action Plan for Enhanced Enforcement of the Mental Health and Substance Abuse Disorder Coverage, https://www.hhs.gov/programs/topic-sites/mental-health-parity/achieving-parity/21st-century-cures-act-section-13002/index.html