The clock is ticking on MHPAEA compliance | Sheppard Mullin Richter & Hampton LLP



State and federal regulators, Congress, and the Complainants Bar are increasingly focusing on complying with the Mental Health Parity and Addiction Equity Act (MHPEA), especially given the opioid epidemic and the impact of COVID-19 on mental health. Compliance and enforcement of the MHPAEA is a top priority for the United States Department of Labor (DOL) and the National Association of Insurance Commissioners (NAIC) with market conduct reviews, attorney general investigations, States and investigations and subpoenas focused specifically on the MHPAEA. A recent amendment to the MHPAEA requires the DOL, the Department of Health and Human Services, and the Treasury (collectively, the departments) to verify compliance with the MHPAEA for at least 20 health plans each year, effective February 10. 2021.

Buried in the Consolidated Appropriations Act, 2021, enacted at the end of December 2020, Congress formalized the long-standing “best practices” of compliance with the MHPAEA, giving them the force of law. As of February 10, 2021, health plans must make the following information available to government departments upon request:

  • The specific coverage conditions for each non-quantitative treatment limitation (NQTL) and all medical or surgical benefits (med / surg) and mental health and addiction disorders (MH / SUD) to which each NQTL applies in each category benefits;
  • The factors used to determine whether an NQTL will apply to med / surg and MH / SUD benefits;
  • The standards of evidence used to define, assess and apply the factors and any evidence or source used to design and apply the NQTL;
  • Benchmarking demonstrating that the processes, strategies, standards of proof and other factors used to apply each NQTL to MH / SUD benefits, both as written and operational, are comparable and applied no more rigorously than those used to apply each NQTL to med / emergency benefits in the same category of benefits and
  • The specific findings and conclusions drawn by the regime or the issuer regarding compliance or non-compliance.

If departments determine that a plan or issuer is not in compliance, the plan or issuer would have 45 days to correct the problem. If the ministries conclude that the plan or issuer has not sufficiently corrected the default, they will notify all plan members within 10 days. The departments will also share the findings with regulators in the state where the plan is located or where the issuer is licensed to do business.

Although regulatory compliance requirements are based on elements of the DOL MHPAEA Self-Compliance Tool, there is no uniform standard on how benchmarking should be formatted or conducted. On April 2, 2021, the Ministries have issued guidelines explaining that the prudent application of the self-compliance tool should put plans and issuers “in a good position to comply with the. . . “Comparative analyzes”. These guidelines also described additional elements that departments expect “at a minimum, sufficient analyzes must include”, such as:

  • An explanation as to whether there is a variation in the application of a guideline or standard used by the scheme or issuer between the MH / SUD and med / surg services and, if so, the process and the factors used to establish this variation;
  • 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), the timing of the decisions and the qualifications of the decision-maker. (art.);
  • If the regime’s 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 regime or issuer ultimately relied. to the evaluations of each expert to formulate recommendations concerning both MH / SUD and med / emergency benefits
  • Quotes of any specific evidence considered and any test results indicating that the plan or coverage is or is not MHPAEA compliant; and
  • The date of the analyzes and the name, title and position of the person (s) who performed or participated in the comparative analyzes.

Even with this additional information, however, the ministries note that “[t]The precise information needed to support an NQTL analysis will vary depending on the type of NQTL and the processes, strategies, standards of evidence and other factors used by the regime or issuer. This is a cold comfort to regimes and issuers given the absence of a specific, standardized format and requirement for the level of detail and type of information required to demonstrate compliance. Leaving aside some of the challenges presented by demonstrating “as written” compliance, the operational compliance component often relies on quantitative analysis of claims, refunds, wait times and other data. The directive leaves open the fact that the in-service analysis of a scheme or issuer may include information that is necessary but insufficient to establish compliance.

Departments will issue an annual report to Congress that names and dishonors plans and issuers that were not in compliance after a final decision, if each plan or issuer provided enough information for departments to consider, what additional information ( if applicable) departments asked, what actions plans or issuers had to take to become compliant and other information.

Mental health coverage is a popular, bipartisan issue in Congress. We can see additional legislation on compliance and enforcement of the MHPAEA, including the establishment of civil monetary penalties for violations of the MHPAEA (in addition to the existing penalties available under ERISA for violation of the MHPAEA. ‘fiduciary duty), increased damages for private litigation and other measures.

Finally, departments collect information on network reimbursement and network adequacy to develop additional guidelines.



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