The Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Department of Treasury (collectively, the Departments) recently issued their joint report to Congress regarding their Mental Health Parity and Addiction Equity Act (MHPAEA) enforcement activities as required under the MHPAEA and the Consolidated Appropriations Act, 2021 (CAA). The report contained insights regarding the DOL’s enforcement of the new MHPAEA reporting and disclosure requirements related to non-quantitative treatment limitations (NQTLs) established by the CAA. For additional information about the CAA’s new MHPAEA reporting and disclosure requirements, please see our previous blog post (as well as earlier blog posts).
The Departments’ report revealed:
- None of comparative analyses of NQTLs as required under the CAA that were reviewed by the DOL were sufficient. The DOL issued letters to 156 plans and issuers.
- Factors identified by the DOL for why the comparative analyses tended to be deficient included:
- The analysis did not identify the benefits or plan provisions affected by the NQTL.
- The analysis was conclusory and lacked meaningful analysis or supporting evidence or sufficiently explanation.
- The analysis did not explain how the NQTL was designed or how it is applied.
- The DOL reinforced the need for plan sponsors and carriers to utilize the principles set forth in FAQs Part 45 in preparing the report and the MHPAEA Self-Compliance Tool.
- Plan sponsors were unprepared to respond to the DOL’s request for the comparative analyses even though plans were required to have the comparative analyses completed by February 10, 2021. Some plan sponsors were surprised that their third-party administrators (TPA) had not prepared the comparative analyses for them.
- The DOL has increased its MHPAEA enforcement efforts and would like Congress to provide it with additional enforcement authority.
Based on the Departments’ report and the reality that plan sponsors are not in a position to independently prepare the comparative analyses required by the CAA, sponsors of self-insured plans may want to (i) confirm that their TPA is preparing the required comparative analyses, (ii) independently review any comparative analyses that have been or are prepared, and (iii) negotiate contractual protection in the event the TPA’s comparative analyses are determined to be deficient or the TPA’s application of NQTLs is determined to be impermissible.
