On Tuesday April 24th, federal agencies published several forms of guidance dealing with the Mental Health Parity and Addiction Equity Act or MHPAEA. The guidance applies to most major medical plans (but not retiree medical) and shows that the agencies in charge of enforcement (Health and Human Services, Department of Labor, and Treasury) continue to take the MHPAEA seriously. As you might guess, the topic of mental health and substance abuse (and those benefits) is heightened in light of violent events in the national news and related political topics. The recent guidance includes the following topics:
Proposed Q&As Part 39 on MHPAEA. These proposed Q&As run through several examples of noncompliance and remind entities about the disclosure obligations associated with the MHPAEA or ERISA. Hot button topics include (a) various restrictions for eating disorders (e.g. residential treatment, in-patient, or out-of-network); (b) reimbursement rates and defining mental health or substance abuse benefits; (c) dosage limits with prescription medications, (d) step-therapy protocols or fail-first policies, (e) defining experimental or investigative treatment exclusions, and (f) network adequacy standards and accuracy of network provider directories (e.g. summary plan description or SPD requirements). Many of the identified problems can be summarized by an unequal application of a plan term or policy toward mental health or substance abuse as compared to ordinary medical or surgical benefits. These examples also remind us that “the devil is in the details.”
Updated Sample Form to Request Evidence of MHPAEA Compliance. This form is updated and can be used for “parties” to request additional information under the plan for compliance--from employer sponsored plans or the insurer. The form includes examples of items individuals may request their plan to provide within 30 calendar days:
- Provide the specific plan language regarding the limitation and identify all of the medical/surgical and mental health and substance use disorder benefits to which it applies in the relevant benefit classification;
- Identify the factors used in the development of the limitation (examples of factors include, but are not limited to, excessive utilization, recent medical cost escalation, high variability in cost for each episode of care, and safety and effectiveness of treatment);
- Identify the evidentiary standards used to evaluate the factors;
- Identify the 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 and substance use disorder benefits than to medical and surgical benefits.
Self-Compliance Tool. As directed by Section 13001(a) of the 21st Century Cures Act, this publicly available tool may be used to improve compliance with MHPAEA. The Department will update the self-compliance tool every 24 months to provide additional guidance on MHPAEA’s requirements, as appropriate.
Various Agency Reporting Documents. In addition to the above items, HHS and DOL also provided links to several items showing their increased enforcement. This includes a DOL Report to Congress: Pathway to Full Parity, DOL FY 2017 Enforcement Fact Sheet, HHS Section 13002 Action Plan for Enhanced Enforcement, and a HHS published listening session for parity enforcement with involved stakeholders.
Several important related issues identified in these documents includes exclusions, remedies and reporting. First, the agencies state once more that it is NOT a direct violation to have a general exclusion (e.g. bipolar disorder) as these are not treatment limitations. Second, if a MHPAEA problem is found, the remedy will be to remove the offending provisions and re-process those claims correctly. Such reprocessing can be global for identified providers which means your plan may have corrections even without an audit. In a time where where plans often have deductibles, copays, and out-of-pocket maximums, this is no simple task. Lastly, while these documents did not seem to reference it, there is also a potential excise tax penalty under the Code up to $100 per day per affected individual. Tied to this, plan sponsors may also need to consider whether federal reporting is required under IRS Form 8928 for any discovered violations under the MHPAEA.
Entities may wish to discuss with their partner vendors how they may ensure limits under the plan coverage meets these requirements and if they have information necessary to respond to future requests for additional information. Of the 187 investigations conducted by the DOL in 2017 where MHPAEA applied, the DOL cited 92 violations for MHPAEA noncompliance. About two years ago, tri-agency guidance in the form of Q&As Part 31 were released also dealing with MHPAEA enforcement. A summary of that older but related guidance is available here.