DOL Reports 2020 Mental Health Parity Enforcement Actions

The DOL and CMS recently released the 2020 Mental Health Parity and Addiction Equity Act (MHPAEA) Enforcement Fact Sheet and Appendix. The fact sheet summarizes regulatory investigations and public inquiries related to MHPAEA during fiscal year (FY) 2020.

The DOL’s Employee Benefits Security Administration (EBSA) enforces Title I of ERISA with respect to 2.5 million private employment-based group health plans. The EBSA’s approximately 350 investigators review welfare benefit plans for compliance with ERISA, including the MHPAEA provisions. The Centers for Medicare & Medicaid Services (CMS) enforces applicable provisions of the Public Health Service Act (PHS Act), including MHPAEA provisions, with respect to nonfederal governmental group health plans, such as plans for employees of state and local governments. CMS also performs market conduct examinations, where issuers are audited for compliance with applicable federal requirements in states where CMS is responsible for enforcement and in states with a collaborative enforcement agreement. EBSA and CMS annually release the MHPAEA enforcement fact sheets and related reports, summarizing enforcement activities in each fiscal year.

The 2020 reports indicate that the categories of investigated MHPAEA violations included:

• Annual dollar limits.
• Aggregate lifetime dollar limits.
• Benefits in all classifications (i.e., 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).
• Financial requirements (e.g., deductibles, copayments, coinsurance or out-of-pocket maximums).
• Quantitative treatment limitations (QTLs), such as limits on benefits based on the frequency of treatment, number of visits, days of coverage or days in a waiting period, and non-quantitative limitations (NQTLs) that otherwise limit the scope or duration of treatment.
• Cumulative financial requirements and QTLs: financial requirements and treatment limitations that determine whether or to what extent benefits are provided based on certain accumulated amounts.

The regulators also reviewed situations involving MHPAEA claims processing and disclosure violations.

The reported statistics show that EBSA closed 180 health plan investigations in FY 2020, 127 of which involved plans subject to MHPAEA, and thus were reviewed for related compliance. Twenty-five of these MHPAEA investigations involved fully insured plans, 86 involved self-insured plans, and 16 involved plans of both types (the plan offered both fully insured and self-insured options). EBSA cited eight MHPAEA violations in four investigations, all of which involved self-funded group health plans. The cited violations involved four QTLs, two NQTLs and two failures to offer benefits in all classifications.

Illustrations of actual violations are also provided. For example, one investigation uncovered a plan that imposed a waiting period before participants qualified for substance use disorder benefits but imposed no comparable eligibility requirement for medical/surgical benefits. EBSA benefits advisors also answered 99 public inquiries, including 92 complaints, in FY 2020 related to MHPAEA.

CMS cited one MHPAEA violation as a result of a market conduct examination involving an issuer that provided third-party administrative services to self-funded non-federal governmental plans. The exam resulted in a total of $651,103.71 in additional benefits for participants of both the issuer’s insured plans and the self-funded non-federal governmental plans.

The report explains that investigators who find violations generally require the plan to remove any non-compliant plan provisions and pay any improperly denied benefits. In addition, the 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.

The fact sheet is accompanied by an introductory page and an appendix. The introduction notes that the EBSA’s 2021 MHPAEA enforcement initiative will focus on several areas. The focus areas include: 1) the processes for determining whether provider reimbursement rates might indicate a MHPAEA violation; 2) the accuracy of provider network directories; and 3) treatment limitations regarding autism spectrum disorder. The appendix references the available guidance to address each FY 2020 category of violation committed.

Employers should be aware of the release of the fact sheet and related appendix. These materials provide insights regarding the types of MHPAEA violations upon which the regulators are focusing. Employers can then review their own plans for compliance in these areas.

FY 2020 MHPAEA Enforcement »
An Introduction: DOL MHPAEA FY 2020 Enforcement Fact Sheet »
FY 2020 MHPAEA Enforcement Fact Sheet Appendix »