The Mental Health Parity and Addiction Equity Act (MHPAEA) aims to ensure equal coverage for mental health/substance use disorder (MH/SUD) and medical/surgical benefits. This study analyzes enforcement efforts by the Employee Benefits Security Administration (EBSA) and the Centers for Medicare & Medicaid Services (CMS) under the Consolidated Appropriations Act (CAA).
EBSA Enforcement of MHPAEA Under the CAA
EBSA has significantly increased enforcement actions since the CAA, requesting comparative analyses for numerous non-quantitative treatment limitations (NQTLs) and obtaining corrections that have improved MH/SUD coverage for millions.
EBSA’s NQTL Enforcement Priorities
EBSA prioritizes NQTL reviews in six key areas:
- Prior authorization for inpatient services (in-network and out-of-network).
- Concurrent care review for inpatient and outpatient services (in-network and out-of-network).
- Provider network admission standards, including reimbursement rates.
- Out-of-network reimbursement rate determination methods.
- Exclusions of key MH/SUD treatments.
- MH/SUD provider network adequacy standards.
EBSA is particularly focused on network adequacy issues, investigating provider network composition, participation standards, and reimbursement rates.
EBSA’s NQTL Enforcement Approach
EBSA investigates potential violations by reviewing plan documents, examining plan operations, and utilizing leads from various sources. The agency prioritizes violations impacting multiple plans. A key initiative involves directly contacting service providers to address potential exclusions of key MH/SUD treatments. This proactive approach aims to correct issues across numerous plans simultaneously.
EBSA’s Enforcement Results and Impact
EBSA has achieved corrections at various stages of the NQTL review process. These corrections range from complete NQTL removal to plan document revisions, claims reprocessing, and participant notifications. EBSA’s efforts since February 2021 have resulted in 104 plans and issuers correcting 135 NQTLs, benefiting over 4 million participants in more than 39,000 plans. EBSA continues to work on resolving insufficiencies and gathering information for ongoing reviews.
Examples of EBSA’s Impact
EBSA’s actions have significantly improved access to MH/SUD benefits. Examples include:
- Removing exclusions for residential treatment facilities and reprocessing claims.
- Prohibiting the use of Employee Assistance Programs (EAPs) as gatekeepers for MH/SUD services.
- Removing exclusions for MH/SUD telehealth benefits.
- Removing prior authorization requirements for certain MH/SUD services.
- Removing exclusions for treatment provided by opioid treatment programs.
- Removing discriminatory drug testing practices.
- Removing exclusions for inpatient SUD treatment based on completion requirements.
- Removing exclusions for Applied Behavior Analysis (ABA) therapy to treat Autism Spectrum Disorder (ASD).
CMS Enforcement of MHPAEA Under the CAA
CMS enforces MHPAEA for issuers in direct enforcement states and non-federal governmental plans in all states. Between March 25, 2022, and June 6, 2022, CMS requested 21 comparative analyses, focusing on prior authorization and concurrent review limitations.
CMS’ NQTL Enforcement Priorities and Approach
CMS prioritizes NQTL reviews based on prior non-compliance indications and risk assessment, supplemented by random issuer selection. The agency provides entrance conferences and technical assistance to support plan sponsors and issuers throughout the review process.
CMS’ Enforcement Results and Impact
CMS issued initial determinations of non-compliance for all 21 comparative analyses requested for Plan Year 2022. Corrective actions included providing additional information and documentation, revising policies, and conducting self-audits to address member impact. CMS continues to review submissions and engage with plan sponsors and issuers to ensure compliance.
Examples of Corrective Actions
Examples of corrective actions taken by plans and issuers in response to CMS findings include:
- Improving analysis of operational comparability and stringency of NQTLs.
- Providing additional documentation to support comparability and stringency of factors.
- Self-auditing MH/SUD treatment facility coverage claims.
- Removing MH/SUD progress and improvement requirements.
Conclusion
Both EBSA and CMS have undertaken substantial efforts to enforce MHPAEA under the CAA. While significant progress has been made in improving access to MH/SUD benefits, ongoing challenges remain. Continued enforcement, along with plan and issuer cooperation, is crucial to fully realizing MHPAEA’s goals. Future research should examine the long-term impact of these enforcement efforts and identify areas for further improvement.
