On January 25, 2022, the U.S. Departments of Labor (“DOL”), Treasury, and Health and Human Services (the “Departments”) provided a report (the “Report”) on Mental Health Parity and Addiction Equity Act (“MHPAEA”) compliance to Congress. As background, the Consolidated Appropriations Act, 2021 (the “CAA”) imposed new obligations on health plans and health insurance issuers to document how they apply non-quantitative treatment limitations (“NQTLs”) to mental health and substance use disorder (“MH/SUD”) services in parity with how they apply such NQTLs to medical/surgical services. The Report focuses on how plans and issuers should comply with this new comparative analysis requirement. Read more about the details of the CAA’s NQTL comparative analysis requirements in our prior article, available here. A copy of the Report is available here.

The DOL issued 156 letters to health plans and health insurance issuers requesting comparative analyses for 216 unique NQTLs. The DOL indicated that none of the comparative analyses initially submitted in response contained sufficient information, for reasons such as failure to describe the NQTL in sufficient detail and failure to demonstrate parity of NQTLs as written and in operation. After providing the plans and issuers a chance to supplement their initial submissions, the DOL issued letters to 30 plans and issuers noting an initial determination of non-compliance for 48 NQTLs. Here are the five most common NQTLs that the DOL found non-compliant:

1. Limitation or exclusion of applied behavioral analysis therapy or other services to treat autism spectrum disorder;

2. Billing requirements – licensed MH/SUD providers can bill the plan only through specific types of other providers;

3. Limitation or exclusion of medication-assisted treatment for opioid use disorder;

4. Preauthorization or precertification; and

5. Limitation or exclusion of nutritional counseling for MH/SUD conditions.

1. ABA for Treatment of Autism

Exclusion of applied behavioral analysis therapy (“ABA”) and similar services for the treatment of autism have commonly been the subject of lawsuits against plans and issuers, alleging violations of ERISA fiduciary duties and the MHPAEA. In addition to limitations or exclusions on ABA being the most common NQTL that the DOL found to be non-compliant, the DOL also expressly called out the removal of ABA therapy exclusions as an example of an area in which MHPAEA audits and corrective action plans have had a major impact on protecting plan participants and meeting the purposes for which the MHPAEA was enacted. Plan sponsors that currently have exclusions or limitations in their plans on ABA and similar services for the treatment of autism should carefully consider the exclusion or limitation to consider whether it is in compliance with the MHPAEA.

2. Billing Requirements for MH/SUD Providers

Some plans require MH/SUD providers to bill the plan through other providers or certain channels in order for the MH/SUD to receive full (or any) reimbursement for services. If this requirement is not imposed on medical or surgical providers for equivalent non-MH/SUD services, these restrictions on MH/SUD providers likely trigger MHPAEA compliance issues. Plan sponsors should review any disparate billing practices for different provider types carefully to ensure that they do not run afoul of MHPAEA requirements.

3. Medication for Opioid Use Disorders

The third most common NQTL found to be non-compliant by the DOL is the exclusion or limitation of coverage of medication-assisted treatment for opioid use disorder. As with ABA, the DOL expressly called out this NQTL as an example of an area in which MHPAEA audits and corrective action plans have had a major impact. Given the opioid epidemic facing the United States, SUD treatments are an enforcement priority. Plan sponsors should carefully consider any limitations or exclusions on the coverage of prescription medications for opioid use disorder, alone or in combination with other services, to ensure they are in compliance with the MHPAEA.

4. Preauthorization

Preauthorization (aka prior authorization or precertification) is an NQTL that nearly every health plan applies. The Departments have previously indicated that preauthorization NQTLs are an area of enforcement priority (see Q&A 8 in FAQs About Mental Health and Substance Use Disorder Parity Implementation and the Consolidated Appropriations Act, 2021 Part 45). Issues arise regarding preauthorization when the requirements are not applied equally to MH/SUD services and medical/surgical services. For example, if a plan requires prior authorization for treatment at a residential treatment facility, but does not require prior authorization for treatment at a skilled nursing facility, preauthorization is likely not being applied in parity. The DOL specifically called out removal of blanket preauthorization requirements on all MH/SUD benefits as an example of an area in which MHPAEA audits and corrective action plans have had a major impact. Plan sponsors should carefully review their preauthorization requirements to ensure that they are compliant with the MHPAEA and do not apply more stringently to MH/SUD benefits than medical/surgical benefits.

5. Nutritional Counseling for MH/SUD Conditions

The fifth most common NQTL found to be non-compliant by the DOL is the exclusion or limitation of coverage for nutritional counseling to treat MH/SUD conditions. If a plan covers nutritional counseling for medical/surgical conditions like diabetes, but not for MH/SUD conditions like anorexia nervosa or bulimia nervosa, the plan is likely not in compliance with the MHPAEA. This is yet another area the DOL called out as an example of how MHPAEA audits and corrective action plans have had a major impact, with one corrective action plan with an issuer affecting over 1.2 million participants. Plan sponsors should review any limitations or exclusions on the coverage of nutritional counseling to ensure they are applied in parity to both medical/surgical and MH/SUD conditions.

Summary

The Report’s in-depth discussion of plans’ and issuers’ compliance with NQTL comparative analysis requirements provides many helpful insights to plan sponsors as they conduct and revise their own NQTL analyses. Plan sponsors should consider giving additional focus to the five areas of common non-compliance discussed here, as the DOL will likely continue to focus on these areas in future NQTL comparative analysis requests.