Department of Labor Continues to Focus on Mental Health Parity (Benefit Minute)
The Mental Health Parity and Addiction Equity Act (MHPAEA) requires that financial requirements and quantitative treatment limitations imposed on mental health and substance use disorder benefits cannot be more restrictive than the requirements that apply to medical/surgical benefits in the same classification. MHPAEA also states that a group health plan may not impose non-quantitative treatment limitations (NQTL) with respect to mental health/substance use disorder benefits that are more restrictive than comparable limitations applied to medical/surgical benefits and imposes certain disclosure requirements. The 21st Century Cures Act passed in 2016 mandated that DOL solicit feedback and issue guidance regarding the disclosure and NQTL requirements. As a result, the DOL (with HHS and Treasury) recently issued guidance that includes proposed FAQS, a revised disclosure template, a self-compliance tool and an enforcement fact sheet. The guidance will take effect when final FAQs are published.
The proposed FAQs primarily address NQTLs. These FAQs focus on how the NQTLs are applied in operation (even when the language of plan seems to be compliant) and address relevant issues such as ABA therapy, opioid addiction and eating disorders. The FAQs address the following: Experimental/investigative treatments: To the extent that a plan follows current medical evidence and professionally recognized treatment guidelines for determining whether a medical/surgical treatment is covered, the same standard must apply to mental health/substance use disorder treatments. For example, if a plan defines Autism Spectrum Disorder as a mental health condition, the plan must cover ABA therapy if supported by the same treatment guidelines that are used to determine that an experimental medical/surgical treatment will be covered. The experimental treatment exclusion cannot be applied unconditionally to mental health/substance use disorder treatments when it is applied conditionally to medical/surgical treatments.
Medical management standards: A plan may impose prescription drug dosage limits as a medical management technique. However, to the extent that a plan follows professionally recognized treatment guidelines to set dosage limits for prescription drugs related to medical/surgical conditions, the same standard must apply to mental health/substance use disorder treatments. For example, a plan cannot set a lower dosage limit for buprenorphine to treat opioid use disorder when the dosage limits for medical/surgical benefits follow the treatment guidelines.
General exclusions: A plan may exclude all benefits for a particular condition or disorder without violating MHPAEA. However, once the condition is covered, the NQTLs requirements apply. Certain fully insured plans may not have the flexibility to exclude particular mental health/substance use disorder conditions due to state insurance law and ACA essential health benefit requirements.
Step therapy: If a plan requires step therapy, the processes, strategies, evidentiary standards and other factors must be comparable and cannot be applied more stringently for mental health/substance use disorder treatments. For example, a plan cannot require 2 unsuccessful outpatient attempts to be eligible for inpatient mental health/substance use disorder treatment if only one unsuccessful attempt is required for inpatient medical/surgical treatment.
Facility type: If the plan excludes or limits benefits for mental health/substance use disorder treatment based on the type of facility, the plan must use comparable factors applied no less stringently for medical/surgical treatment. For example, if inpatient out-of-network medical/surgical treatment outside of a hospital is covered with prior authorization, then the plan may not unequivocally exclude all inpatient out-of-network mental health/substance use disorder treatments outside of a hospital (e.g. residential treatment center for eating disorders).
Provider reimbursement rates and network adequacy: While a plan is not required to pay identical provider reimbursements for medical/surgical and mental health/substance use disorder, the plan’s standards for admitting a provider to participate in the network and the reimbursement methodology must be comparable. In addition, to the extent that factors such as distance standards and appointment waiting times are used to measure network adequacy, these factors must be applied comparably. For example, a plan may not reduce the reimbursement rate for non-physicians providing mental health/substance use disorder services if both physician and non-physician practitioners are paid the same reimbursement rate for medical/surgical services. Similarly, a plan may not attempt to ensure that participants can schedule an appointment within 15 days for medical/surgical services if the same factor is not used in developing the network for mental health/substance use disorder services. The FAQs also address network provider directory requirements and clarify that ERISA-covered health plans are required to furnish an up-to-date directory of mental health/substance use disorder providers, either as part of the SPD or as a separate document that accompanies the SPD. The directory may be provided electronically in accordance with the DOL’s electronic distribution rules. The summary of benefits and coverage (SBC) must also include information for obtaining a list of network providers.
Requesting Documentation for Treatment Limitations
The DOL has also provided a disclosure template which can be used by plan participants to request general information about the plan’s NQTLs or specific information about treatment limitations that may have resulted in a denial of plan benefits. A plan or insurer must be prepared to respond to the request for information within 30 days of receipt. The form requests that the plan:
- Provide specific plan language regarding the limitation and how it applies to both medical/surgical benefits and mental health/substance use disorder benefits;
- Identify factors used in the development of the limitation;
- Identify evidentiary standards used to evaluate the factors;
- Identify methods and analysis used in the development of the limitation; and
- Provide any evidence and documentation to establish that the limitation is applied no more stringently, as written and in operation, to mental health/substance use disorder benefits than to medical/surgical benefits.
Penalties for MHPAEA Violations
Under current law, the penalty for MHPAEA violations is equitable relief – a plan must provide the benefits that the participant was entitled to receive in compliance with MHPAEA. Additionally, the DOL does not have authority to enforce MHPAEA directly against insurance carriers. The DOL has suggested that Congress should strengthen the law by creating a new civil monetary penalty regime.