Departments Issue Robust Mental Health Parity Implementation Guidance

Volume 41 | Issue 27

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The newly released regulatory package reflects the departments’ focus on compliance assistance in proposing specific examples of mental health parity violations along with a revised draft disclosure template. It also pushes for civil monetary penalties in connection with parity violations as a way to foster more effective MHPAEA enforcement.

Background

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) prohibits group health plans from applying a financial requirement or quantitative treatment limitation to mental health and substance use disorder (MH/SUD) benefits in a classification that is more restrictive than the predominant financial requirement or treatment limitation of that type applied to substantially all medical/surgical benefits in the same classification. It also prohibits group health plans from imposing a nonquantitative treatment limitation (NQTL) on MH/SUD benefits that is more stringent than comparable limitations the plan applies to medical/surgical benefits. (See our January 14, 2014 For Your Information.)

2013 regulations set forth group health plan disclosure requirements designed to help participants and beneficiaries evaluate MH/SUD parity. (See our May 19, 2016 For Your Information.) In 2016, the Departments of Labor, Treasury, and Health and Human Services (departments) sought comments on developing model forms that participants and beneficiaries could use to obtain information on NQTLs. (See our December 2, 2016 For Your Information.) In 2017, responding to a directive in the 21st Century Cures Act, they solicited more feedback on disclosures and clarified that treatment for eating disorders is a mental health benefit. (See our July 5, 2017 For Your Information.)

Under current law, penalties for parity violations are limited to “equitable relief” — which generally means requiring reimbursement and/or coverage for improperly denied claims. There are no civil monetary penalties for MHPAEA violations.

Implementation Guidance

On April 23, 2018, the departments issued a package of guidance on mental health parity implementation comprised of proposed FAQs, DOL’s 2018 report to Congress entitled Pathway to Full Parity, an enforcement fact sheet, a self-compliance tool, a revised disclosure template, and HHS’s action plan. Highlights of this guidance include:

  • Articulation of the departments’ view that imposing civil enforcement penalties for parity violations would make MHPAEA enforcement more effective

Comment: For now, at least, Congress does not appear inclined to implement such penalties. Earlier today, the Opioid Crisis Response Act of 2018 was favorably reported out of the Senate Health, Education, Labor, and Pensions (HELP) Committee by unanimous consent — but without an amendment Senator Chris Murphy, D-Conn., had proposed that would have implemented civil monetary penalties for parity violations.

  • Proposed FAQs explaining, among other examples, that a plan cannot:
    • Deny as experimental claims for Applied Behavior Analysis therapy to treat children with Autism Spectrum Disorder that is supported by professionally recognized treatment guidelines where the plan approves treatment for medical/surgical conditions that are supported by similar guidelines (see our January 12, 2018 For Your Information on autism treatment benefits and coverage limitations for background on this topic)
    • Exclude coverage for inpatient, out-of-network treatment outside of a hospital for eating disorders (such as a residential treatment center) where it covers such treatments for medical/surgical conditions following physician authorization and a determination that the treatment is medically appropriate based on clinical standards of care
  • Descriptions of DOL pilot programs, including the Regional Opioid Investigative Task Force, designed to further prioritize parity enforcement
  • “Compliance tips” throughout the self-compliance tool that emphasize, for example, the need to focus on “underlying processes and strategies” — rather than results — in applying NQTLs
  • Descriptions of DOL’s 2017 parity enforcement actions involving improper restrictions on residental treatment, overly restrictive financial requirements, and overly stringent precertification requirements
  • Revisions to the model request for disclosure form based on stakeholder feedback, including examples of factors used in the development of an NQTL (like excessive utilization, recent medical cost escalation, high variability in cost for each episode of care, and safety and effectiveness of treatment)

In Closing

Comments on the proposed FAQs are due June 22, 2018. This guidance appears to signal enhanced enforcement efforts on the part of the departments. We will discuss the guidance in detail in a future For Your Information publication.