DOL Updates Tool to Determine If Health Plans Provide Mental Health Parity

Self-compliance audits can help to avoid enforcement actions, employee lawsuits

Stephen Miller, CEBS By Stephen Miller, CEBS October 28, 2020
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Counseling session with therapist and patient.

On Oct. 23, the U.S. Department of Labor (DOL) released an updated tool to help employers comply with the Mental Health Parity and Addiction Equity Act (MHPAEA) and related requirements under the Employee Retirement Income Security Act (ERISA).

MHPAEA applies to group health plans sponsored by private- and public-sector employers with more than 50 employees, including self-insured and fully insured arrangements.

An Emotional Toll

This year, the COVID-19 pandemic led to a surge in employees' mental health challenges. An August survey of 2,000 full-time workers, for instance, showed that self-reported assessments of mental wellness have dropped 33 percent since the pandemic began, HR services company Hibob reported. Along with similar results from other employee surveys, the findings highlight the importance of mental health and substance-use disorder (MH/SUD) benefits.

The improved MHPAEA Self-Compliance Tool consists of questions and examples to help group health plan sponsors and administrators determine if their plans comply with the laws relating to MH/SUD coverage. It includes items to review such as medical management standards, network and plan designs, plan precertification requirements, and coverage exclusions and limitations.

The updated tool will help people "obtain the treatment they need by assisting plans and issuers in complying with the law," said U.S. Secretary of Labor Eugene Scalia. The DOL last updated the tool in 2018.

[Visit SHRM's resource page on Mental Health.]

Equal Limits on Treatment

In general, under the MHPAEA, a group health plan that imposes financial requirements and treatment limits on MH/SUD benefits must ensure those limits are comparable to—and applied no more stringently than—limits for medical and surgical benefits.

The law, for instance, requires parity in:

  • Financial requirements, such as deductibles or co-payments.
  • Quantitative treatment limits, such as number of covered visits.
  • Nonquantitative treatment limits, which are nonnumerical limits on the scope or duration of benefits, such as a pre-authorization requirement or a medical-management technique.

The MHPAEA does not require a plan to cover any specific MH/SUD conditions; rather, if the plan covers an MH/SUD condition, it is required under the MHPAEA to cover the condition in parity with medical/surgical benefits. The law does not apply to retiree-only plans or excepted benefits.

"The tool makes it clear that the departments expect plan sponsors to perform MHPAEA assessments and carefully monitor and document parity compliance," according to Segal, an employee benefits consulting firm. "Plan sponsors should develop formal, internal parity compliance plans that take into account all aspects of parity compliance," the firm advised.

"The DOL's Employee Benefits Security Administration (EBSA) enforces MHPAEA requirements for large employers sponsoring group health plans, although individual beneficiaries can sue under ERISA to enforce the parity requirements without filing a DOL complaint," explained Katharine Marshall and Kaye Pestaina, principals with the law and policy group at HR consultancy Mercer. The IRS "can fine a group health plan up to $100 per day for each individual affected by a parity violation," they noted.

Participant Lawsuits

"There have been more than 100 lawsuits in the past several years" alleging a lack of parity with MH/SUD benefits, mostly concerning coverage for residential and other treatment facilities, wrote Joel Ario, Michael Kolber and Joseph Laska, attorneys at Los Angeles-based law firm Manatt Phelps & Phillips. These lawsuits often test the scope of treatment limits, the attorneys noted, specifically with respect to unequal requirements regarding the scope or length of benefits, such as requiring prior authorization for treatment, fail-first protocols, and provider-network or medical-necessity standards only for MH/SUD benefits.

Compliance Actions

Last year, the DOL released an MHPAEA enforcement fact sheet and appendix. "These documents give glimpses of the kinds of issues the DOL is seeing," according to the compliance team at Hub International, a global insurance brokerage. The team noted that the guidance can also "serve as a roadmap for employers to watch out for these same issues in their plans."

Examples of situations that led to DOL actions included:

  • Imposing an annual office visit limit that applies only to SUD benefits.
  • Imposing a medical-necessity review requirement only on outpatient MH/SUD benefits.

The DOL required plans to remove the limits and reprocess any denied claims.

"Applying different cost-sharing rules to MH/SUD benefits than to medical/surgical benefits in the same classification (e.g., inpatient versus outpatient, in network versus out of network) should be easier for employers to spot since they will show up in benefit communications," according to Hub's consultants. "Others, like a service provider's rules on medical-necessity review, are out of an employer's immediate view. However, to the extent employers become aware of potential different treatment of MH/SUD claims and medical/surgical claims, they should consider asking questions of their carriers and other service providers."

Self-insured employers should consider conducting periodic claims audits and reviews, as well as review their program structure, Hub advised.

Related SHRM Articles:

Workers' Mental Health Suffers During the Pandemic: How Managers Can Help, SHRM Online, October 2020

Regulators Ramp Up Mental-Health Parity Efforts, SHRM Online, May 2018 


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