DOL and CMS Release 2022 MHPAEA Enforcement Fact Sheet

On July 25, 2023, the DOL and CMS released the 2022 MHPAEA Enforcement Fact Sheet. The fact sheet, which is provided annually, summarizes enforcement data and results from MHPAEA investigations closed by the DOL and CMS in the prior fiscal year. The departments simultaneously published related guidance; please see our articles entitled MHPAEA 2023 Report to Congress Focuses on NQTLs and CAA, 2021 Compliance, Departments Announce Proposed Rules to Strengthen MHPAEA, and Technical Release on Network Composition Accompanies Proposed MHPAEA Rule, which are also featured in this edition of Compliance Corner.

The DOL enforces compliance with ERISA, including the MHPAEA provisions, with respect to 2.5 million private group health plans through approximately 326 investigators and 113 benefits advisors. CMS enforces the MHPAEA with respect to nonfederal governmental group health plans, such as state and local governmental plans. CMS also oversees MHPAEA compliance of insurers in states where CMS is responsible for enforcement and provides compliance assistance in states with a collaborative enforcement agreement.

During the 2022 fiscal year, the DOL and CMS significantly increased their nonquantitative treatment limitation (NQTL) enforcement activity in response to CAA, 2021 requirements imposed on plans and insurers. The categories of MHPAEA violations investigated by the DOL and CMS also included, but were not limited to, annual and lifetime dollar limits, financial requirements (e.g., deductibles, copayments) and quantitative treatment limitations (QTLs), such as treatment limitations based on the number of visits or days of coverage. Additionally, the regulators reviewed situations involving MHPAEA claims processing and disclosure violations.

The 2022 reported statistics show that the DOL closed 145 health plan investigations, 86 of which involved plans subject to the MHPAEA and thus were reviewed for related compliance. Twenty of these MHPAEA investigations involved fully insured plans, 50 involved self-insured plans, and 16 involved plans of both types (the plan offered both fully insured and self-insured options). The DOL cited 18 MHPAEA violations in 11 investigations, 10 of which involved self-funded group health plans. Notably, the cited violations included 10 NQTL violations and one final determination of noncompliance with the NQTL comparative analysis requirements. DOL benefits advisors also answered 160 MHPAEA-related public inquiries, including 142 complaints.

During the same period, CMS closed four self-insured nonfederal governmental group health plan MHPAEA investigations and nine MHPAEA NQTL comparative analysis reviews of nonfederal governmental group health plans and health insurers in states where CMS is responsible for MHPAEA enforcement. CMS cited seven MHPAEA violations because of the NQTL comparative analysis reviews.

The fact sheet explains that investigators who find violations generally require the plan or coverage to remove any non-compliant provisions and pay any improperly denied benefits. For example, the 2022 reporting cites the following results of DOL and CMS enforcement actions to address MHPAEA violations:

• The elimination of impermissible preauthorization requirements and payment of improperly denied claims.
• The reimbursement of excessive cost-sharing (i.e., copayments) based on impermissible financial requirements.
• Obtaining access to applied behavior analysis (ABA) therapy for participants whose claims were denied due to a plan exclusion.
• The correction of improper reimbursements for out-of-network ABA therapy claims.
• The elimination of an exclusion for residential treatment for mental health and substance use disorders when there was no comparable exclusion for medical/surgical care in the relevant classifications.
• Updating provider network participation standards to correct distance and time criteria used to determine the availability of inpatient facilities, which were not comparable for medical/surgical and mental health and substance use disorders.

The fact sheet also notes that investigators work with the plan service providers (such as TPAs) to obtain broad correction, not just for the plan(s) investigated, but for other plans that work with that service provider.

Employers should be aware of the release of the enforcement fact sheet, which provides insights regarding the types of MHPAEA violations upon which the regulators are focusing. Employers should review their own plans for compliance in these areas.

FY 2022 MHPAEA Enforcement Fact Sheet »