DOL and CMS Issue MHPAEA Enforcement Fact Sheet

January 28, 2025

The DOL and CMS recently released the 2023 Mental Health Parity and Addiction Equity Act (MHPAEA) Enforcement Fact Sheet that summarizes MHPAEA enforcement efforts for fiscal year 2023.

The MHPAEA Fact Sheet provides general statistics related to group health plans. EBSA estimates there are 2.6 million employment-based group health plans covering 136 million participants and beneficiaries. EBSA is tasked with enforcing the MHPAEA with respect to those plans. This is accomplished through approximately 302 investigators and 113 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 plan design and work with the fiduciaries and administrators on broader plan compliance issues.

According to the MHPAEA Fact Sheet, EBSA and CMS investigated MHPAEA violations in the following categories in 2023:

1. Annual dollar limits: Dollar limitations on the total amount of specified benefits that may be paid in a 12-month period under a group health plan or health insurance coverage for any coverage unit.
2. Aggregate lifetime dollar limits: Dollar limitations on the total amount of specified benefits that may be paid under a group health plan or health insurance coverage for any coverage unit.
3. Benefits in all classifications: Requirement that if a plan or issuer provides mental health or substance use disorder benefits in any classification described in the MHPAEA final regulations, mental health or substance use disorder benefits must be provided in every classification in which medical/surgical benefits are provided.
4. Financial requirements: Deductibles, copayments, coinsurance, or out-of-pocket maximums.
5. Treatment limitations: Limits on benefits based on the frequency of treatment, number of visits, days of coverage, days in a waiting period, or other similar limits on the scope or duration of treatment. Treatment limitations include both quantitative treatment limitations (QTLs), which are expressed numerically (such as 50 outpatient visits per year), and NQTLs (such as medical management standards), which otherwise limit the scope or duration of benefits for treatment under a plan or coverage.
6. Cumulative financial requirements and cumulative QTLs: Financial requirements and treatment limitations that determine whether or to what extent benefits are provided based on certain accumulated amounts. They include deductibles, out-of-pocket maximums, and annual or lifetime day or visit limits. 

In fiscal year 2023, EBSA benefit advisors answered 196 public inquiries related to MHPAEA, of which 183 were complaints. Overall, EBSA investigated and closed 102 plan investigations. Only half of those were subject to MHPAEA. All those plans were reviewed for compliance, and 31 violations were discovered related to:

• 10 financial limits;
• Four QTLs;
• 16 NQTLs, including eight separate treatment limitations that were benefit exclusions; and
• One final determination of noncompliance with the NQTL comparative analysis requirements in a closed investigation.

CMS is also involved in the enforcement of MHPAEA with respect to nonfederal governmental group health plans and health insurers selling fully insured group health products in states that do not enforce the MHPAEA. CMS currently has 15 investigators who review plans and issuers for compliance with MHPAEA. In this role, CMS received 43 MHPAEA-related complaints in fiscal year 2023. CMS cited two MHPAEA violations:

• One NQTL concerning applied behavior analysis (ABA) therapy where prior authorization requirements were more stringently applied to ABA therapy (a mental health service) than to medical/surgical services. Specifically, prior authorization for ABA therapy was required every six months. No such timeframe was imposed for prior authorization of medical/surgical services in the outpatient, in-network classification; and
• One QTL related to a more stringent financial requirement for mental health and substance use disorder benefits as compared to medical/surgical benefits.

The MHPAEA Fact Sheet highlighted the following specific corrective actions the agencies took to protect mental health and substance use disorder benefits upon identifying NQTL violations:

• Eliminated restrictions on services related to autism spectrum disorder (ASD) and substance use disorder treatment.
• Removed excess cost-sharing refunded and impermissible precertification requirement.
• Reprocessed mental health claims and returned excess cost sharing.
• Eliminated higher copays for mental health and substance use disorder benefits in-network, outpatient visits.
• Increased coverage for ABA therapy.
• Removed improper specialist copay for mental health and substance use disorder office visits.
• Removed the impermissible six-month limit on ABA therapy prior authorization approvals.
• Eliminated exclusions for methadone treatment for opioid use disorder (OUD) and Spravato for individuals with substance use disorders.

Employers should be aware of the EBSA's and CMS’ efforts to make sure that benefit plans comply with the MHPAEA. 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.

The MHPAEA Fact Sheet