DOL has made this new mental health parity requirement a top enforcement priority | Foley & Lardner srl



Integrated into the Consolidated Appropriations Act of 2021 (the “CAA”) is a new requirement for group health plan sponsors and insurers who provide health insurance to document that their group health plan or insurance policy complies with the non-quantitative processing limitations of the Mental Health Parity and Substance Abuse Equity Act 2008 (the “MHPAEA”). The provision entered into force on February 10, 2021.

As a background, the MHPAEA generally requires group health plans to ensure that the benefits provided by the plan for mental health and addiction disorders are equivalent to those provided for medical and surgical benefits. This parity applies to both quantitative requirements, such as dollar limits or limitations on the number of processing days, as well as non-quantitative processing limitations (“NQTL”) such as determinations of necessity. medical, pre-certification requirements and criteria for the designation of physicians. providers as network providers. The new documentation obligation only applies to NQTLs.

At a high level, the CAA requires plan sponsors and issuers to document the following:

  • The terms of the plan concerning the NQTLs and the classification of the benefits to which they apply;
  • The factors and standards used to determine these NQTLs for medical / surgical benefits and mental health / addiction disorders;
  • An analysis to show whether the NQTLs, both as drafted and in effect, are not more stringent for mental health / substance abuse benefits than they are for medical / surgical services; and
  • Specific findings and conclusions on the parity of NQTLs.

In a recent set of faqs, the three federal government agencies responsible for enforcing this new rule – the Department of Labor, the Internal Revenue Service, and the Department of Health and Human Services (collectively, “departments”) – include additional details, such as :

  • Analyzes should explain whether any factors used in creating an NQTL were given more weight than others and the reason (s) why this was done, including an assessment of any specific data used in the determination.
  • To the extent that the plan or issuer defines any of the factors, standards of proof, strategies or processes in a quantitative manner, it must include the precise definitions used and any supporting sources.
  • If the application of the NQTL relies on specific decisions in the administration of benefits, the plan or issuer should identify the nature of the decisions, the decision maker (s), when they were made and the qualifications of the decision maker (s). decision makers. ).
  • If the plan or issuer’s analyzes are expert-based, the analyzes, as documented, should include an assessment of the qualifications of each expert and the extent to which the plan or issuer ultimately relied on the valuations of each expert to make recommendations.

Plan sponsors and insurers do not have to file this report documenting their analysis of NQTL; on the contrary, if a ministry requests a copy, the plan sponsor or insurer is required to provide a copy to the ministry. Departments will typically request a copy when investigating potential violations of the MHPAEA or complaints of non-compliance with the MHPAEA that concern NQTLs, although the law also allows departments to request a copy of the report in other circumstances, which could include a routine health plan audit. .

If any of the departments requests the report and determines that it is insufficient, they will tell the plan sponsor or issuer what additional information is needed. If any of the departments, after reviewing the report, determines that there is an issue with the way the NQTLs are applied to mental health / substance abuse benefits, they will grant the plan sponsor or issuer 45 days to correct the problem. If the problem is not corrected to the satisfaction of the Ministry, then the plan should inform its participants that its plan violates the MHPAEA.

The report should also be provided at the request of state insurance regulators and plan members.

Plan sponsors who offer fully insured benefits should discuss with their insurance broker whether the report is available from the insurance company. Under the CAA, the insurer is required to prepare the report.

Plan sponsors who offer self-insured benefits are responsible for preparing the report. So far, although we have seen third-party administrators provide some of the information needed to prepare the report, this information is not tailored to the specific plan of the plan sponsor and does not include all of the necessary analysis, so plan sponsors will need to work with their ERISA lawyer or employee benefits consultant to turn the third-party administrator’s information into a report that meets these legal requirements. Third-party administrators should be aware of this new obligation and that most self-insured plan sponsors look to their third-party administrators for this data.

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