Background

The Consolidated Appropriations Act, 2020 requires plans and insurers to perform and document comparative analyses of the nonquantitative treatment limitation (NQTL) they apply to mental health/substance use disorder (MH/SUD) benefits — and to be prepared to make those analyses available to the Secretary of Labor upon request, as of February 10, 2021.

An NQTL is generally a non-numerical requirement that limits the scope or duration of benefits (such as prior authorization requirements, step therapy and provider reimbursement rules).

Report to Congress

Every two years, the DOL, along with the Departments of Health and Human Services and the Treasury (collectively, the Departments), are required by law to report to Congress on MHPAEA compliance. In addition, beginning this year, the Departments are required to provide an annual report to Congress regarding the NQTL comparative analysis requirements under MHPAEA and the Consolidated Appropriations Act, 2020.

Consequently, the Departments issued the 2022 MHPAEA Report to Congress: Realizing Parity, Reducing Stigma, and Raising Awareness, addressing both reporting obligations.

MHPAEA enforcement

The report emphasizes the Departments’ continued focus on ensuring access to MH/SUD benefits and compliance with MHPAEA. The Departments provided examples of the changes their investigations resulted in, including:

• The elimination of exclusions for applied behavioral therapy to treat autism
• The removal of exclusions for medication-assisted treatment for opioid use disorder
• The elimination of certain impermissible nutrition counseling exclusions that were applied more restrictively to MH conditions than to medical/surgical conditions
• The correction of restrictive claims processes related to urine drug testing for SUD
• The removal of blanket prior authorization requirements on outpatient MH and SUD benefits
• The correction of impermissible exclusions and limitations related to residential treatment

As part of 86 investigations, the DOL’s Employee Benefits Security Administration (EBSA), which is responsible for enforcement of ERISA plans’ compliance, issued 156 letters to plans and insurers requesting comparative analyses for 216 NQTLs.

The Centers for Medicare & Medicaid Services (CMS), which focuses on public sector plans, issued 15 letters to insurers in Missouri, Texas and Wyoming (states where CMS has direct enforcement authority over MHPAEA) and to sponsors of state and local government plans those and other states.

The report provides a background on MHPAEA, overviews the Departments’ enforcement approach, underscores that MHPAEA enforcement will remain a priority for the Departments and calls for Congressional action to enhance MHPAEA and MH/SUD enforcement. Specifically, the Departments request:

• Civil monetary penalties
• Direct enforcement authority with respect to third-party benefit administrators
• Extension of flexibilities that allow for expanded access to telehealth
• Amendments to MHPAEA to promote uniformity and objectivity in defining MH and SUD benefits

NQTL comparative analyses

With respect to the NQTL comparative analysis requirements that became applicable last year, the Departments report that none of the comparative analyses received by the Departments contained sufficient information upon initial receipt.

The report does not provide an example of an acceptable NQTL comparative analysis, nor an indication that such examples will be provided to the regulated community. The report does indicate that EBSA will update the MHPAEA Self-Compliance Tool again in 2022.

The Departments list common ways an NQTL comparative analysis may fall short, including the following:

• Conclusory assertions lacking specific supporting evidence or detailed explanation
• Non-responsive comparative analysis
• Documents provided without adequate explanation
• Failure to identify the specific MH/SUD and medical/surgical benefits or MHPAEA benefit classification(s) affected by an NQTL
• Limiting scope of analysis to only a portion of the NQTL at issue
• Failure to demonstrate the application of identified factors in the design of an NQTL

FY 2021 MHPAEA enforcement fact sheet

The fact sheet FY 2021 MHPAEA Enforcement summarizes investigations and public inquiries, including complaints. It covers EBSA and CMS activity.

EBSA and CMS investigated MHPAEA violations in these categories:

• Annual dollar limits
• Aggregate lifetime dollar limits
• Benefits in all classifications described in the MHPAEA final regulations
• Financial requirements (i.e., deductibles, copayments, coinsurance or out-of-pocket maximums)
• Quantitative treatment limitations (QTLs) and NQTLs
• Cumulative financial requirements and QTLs

The fact sheet outlines EBSA’s and CMS’s enforcement processes along with examples of identified violations, complaints and corrections.

Action items for plan sponsors

Plan sponsors should consider reviewing their MH/SUD benefits to determine where additional benefit offerings may be valuable and/or where unnecessary benefit restrictions may be removed. They should also ensure that impermissible exclusions are removed from coverage.

To be prepared for a possible investigation by EBSA or CMS, plan sponsors must ensure that thorough MHPAEA QTLs and NQTL analyses have been completed. This will include working with plan benefit administrators to ensure that comparative analyses align with the Departments’ expectations and have been developed with respect to all NQTLs that apply to MH/SUD benefits. For purposes of conducting comparative analyses, this involves collecting information about processes applicable to medical/surgical benefits as well, to show that MH/SUD benefits are not being provided in writing or operation in a more restrictive manner than medical/surgical benefits.

Plans may also want to consider any amendments to service provider contracts necessary to help ensure all relevant parties are aware of and engaged in compliance-related activities.