2022 MHPAEA Report to Congress and Related Fact Sheet Released

The DOL, Department of the Treasury and HHS recently released the 2022 Mental Health Parity and Addiction Equity Act (MHPAEA) Report to Congress, which is delivered every two years. In conjunction with the report, the DOL’s EBSA published a fact sheet summarizing MHPAEA enforcement efforts for fiscal year 2021.

The EBSA Fact Sheet provides general statistics related to group health plans. EBSA estimates there are two million employment-based group health plans covering 137 million participants and beneficiaries. EBSA is tasked with enforcing the MHPAEA with respect to those plans. This is accomplished through approximately 340 investigators and 100 benefit advisors. Benefit advisors provide education and compliance assistance to participants. Advisors may work with plans on voluntary compliance related to a specific incident, whereas investigators review the overall plan design and work with the fiduciaries and administrators on broader plan compliance issues.

In fiscal year 2021, EBSA benefit advisors answered 175 public inquiries related to MHPAEA, of which 144 were complaints. Overall, EBSA investigated and closed 148 plan investigations. Only half of those were subject to MHPAEA. All those plans were reviewed for compliance, and 14 violations were discovered related specifically to financial requirements:

• Cost-sharing (including deductibles, coinsurance, copayments, out-of-pocket limits)
• Quantitative treatment limits (such as number of visits, days in a waiting period, days of coverage)
• Non-quantitative treatment limits (a non-numerical limitation on benefits, such as pre-certification approval procedures)

CMS is also involved in the enforcement of MHPAEA with respect to non-federal governmental group health plans and health insurers selling fully insured group health products in states that do not enforce the MHPAEA. In this role, CMS received three MHPAEA-related complaints in fiscal year 2022. CMS caseworkers reviewed and found no violations. Additionally, CMS closed four market conduct examinations and reviewed four non-quantitative treatment limit (NQTL) analyses, as required by the CAA. Regarding the market conduct examination of an insurer, CMS cited one violation related to financial requirements that resulted in a payment of benefits and interest totaling $5,309.23. CMS cited no violations related to the NQTL reviews.

The EBSA Fact Sheet did not include statistics related to cases including the NQTL comparative analyses because those reviews have not yet been closed. However, the more detailed Congressional Report includes a summary of current findings. The NQTL comparative analysis from 156 plans and issuers were reviewed, and each one was initially found insufficient in the information provided. The report indicates that the following were the most common deficiencies:

• Failed to identify the benefits, classifications or plan terms to which the NQTL applies.
• Failed to describe in sufficient detail how the NQTL was designed or how it is applied in practice to MH/SUD benefits and medical/surgical benefits.
• Failed to identify or define in sufficient detail the factors, sources and evidentiary standards used in designing and applying the NQTL to MH/SUD and medical/surgical benefits.
• Failed to analyze in sufficient detail the stringency with which factors, sources and evidentiary standards are applied; and/or
• Failed to demonstrate parity compliance of NQTLs as written and in operation.

The EBSA also obtained sufficient information to make initial compliance determinations that 30 plans had non-compliant NQTLs. In other words, they were immediately found to violate MHPAEA.

The most commonly occurring violation was the limitation or exclusion of applied behavioral analysis (ABA) therapy or other services to treat autism spectrum disorder. This violation was discovered in an EBSA investigation of a third-party administrator (TPA) providing claims administration services to self-insured group health plans. This TPA defaulted to a plan design where ABA treatment was an excluded benefit, and an employer had to opt in for such coverage. As a result, hundreds of their employer clients excluded ABA treatment. The EBSA considers this exclusion to be a potential violation of the MHPAEA. After working with the EBSA, the TPA will default its platform to include coverage for ABA treatment allowing an employer to opt out only if it affirmatively states that it wishes to retain the exclusion, has consulted with legal counsel concerning the exclusion, and wishes to contend that the exclusion is compliant with MHPAEA.

Employers should be aware of the EBSA’s efforts to make sure that benefit plans comply with the MHPAEA. The report includes many other specific examples of plan designs that are a red flag to the EBSA. If an employer identifies a potential risk with their plan, they should contact their consultant and work with outside counsel and the respective carrier to review and resolve as necessary.

EBSA MHPAEA Enforcement Fact Sheet »
2022 MHPAEA Report to Congress »