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 the Gender Parity Act. Mental Health and Substance Abuse Equity (“MHPAEA”) compliance with Congress. As a backdrop, the Consolidated Credits Act of 2021 (the “CAA”) imposed new obligations on health plans and health insurance issuers to document how they apply non-quantitative processing limitations (“ NQTLs”) to mental health and substance use disorders (“MH/SUD”) on par with how they apply these NQTLs to medical/surgical services. The report focuses on how plans and issuers must comply with this new benchmarking requirement. Read more about the details of the CAA’s NQTL benchmarking requirements in our previous article, available here. A copy of the report is available here.
The DOL sent 156 letters to health plans and health insurance issuers requesting benchmarking for 216 unique NQTLs. The DOL indicated that none of the benchmarks originally submitted in response contained sufficient information, for reasons including the inability to describe the NQTL in sufficient detail and the inability to demonstrate the parity of NQTLs such as written and in force. After giving plans and issuers the opportunity to complete their initial submissions, the DOL sent 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 has found non-compliant:
- Limitation or exclusion of applied behavior analysis therapy or other services to treat autism spectrum disorders;
- Billing Requirements – Qualified MH/SUD Providers may bill the plan only through specific types of other providers;
- Limitation or exclusion of drug treatment for opioid use disorder;
- Pre-authorization or pre-certification; and
- Limitation or exclusion of nutritional advice for HD/SUD conditions.
1. ABA for the treatment of autism
The exclusion of Applied Behavior Analysis (“ABA”) therapy and similar services for the treatment of autism has often been the subject of lawsuits against plans and issuers, alleging breaches of the fiduciary duties of the ERISA and MHPAEA. In addition to the limitations or exclusions on ABA being the most common NQTL that the DOL has found non-compliant, the DOL also specifically referred to the removal of ABA therapy exclusions as an example of an area where audits and the MHPAEA’s remedial action plans have had a major impact on protecting plan members and achieving the purposes for which the LMPSEA was enacted. Plan sponsors who currently have exclusions or limitations in their plans on ABA and similar services for the treatment of autism should carefully review the exclusion or limitation to determine if it complies 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 MH/SUD to receive full (or partial) 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 will likely trigger compliance issues with the MHPAEA. Plan sponsors should carefully review all disparate billing practices for different types of providers to ensure they do not violate MHPAEA requirements.
3. Medications for opioid use disorder
The third most common NQTL deemed non-compliant by the DOL is the exclusion or limitation of drug treatment coverage for opioid use disorder. As with the ABA, the DOL specifically cited this NQTL as an example of an area where MHPAEA audits and corrective action plans have had a major impact. Given the opioid epidemic facing the United States, SUD treatments are a law enforcement priority. Plan sponsors should carefully review any limitations or exclusions of prescription drug coverage for opioid use disorder, alone or in combination with other services, to ensure they comply. at the MHPAEA.
Pre-authorization (aka prior authorization or pre-certification) is an NQTL that almost all health plans apply. Departments have previously indicated that pre-authorization NQTLs are a priority application area (see Q&A 8 in Mental Health and Substance Use Disorders Parity Implementation FAQs and the Consolidated Appropriations Act of 2021 Part 45). Issues arise with prior authorization where requirements do not apply equally to HD/SUD services and medical/surgical services. For example, if a plan requires prior authorization for treatment in a residential treatment facility, but does not require prior authorization for treatment in a skilled nursing facility, prior authorization is probably not enforced. equally. The DOL specifically called the removal of blanket pre-authorization requirements on all MH/SUD benefits as an example of an area where MHPAEA audits and corrective action plans have had a major impact. Plan sponsors should carefully review their pre-authorization requirements to ensure that they comply with the MHPAEA and do not apply more strictly to HD/SUD benefits than to medical/surgical benefits.
5. Nutrition advice for HD/SUD conditions
The fifth most common NQTL deemed non-compliant by the DOL is the exclusion or limitation of coverage of nutritional counseling to treat HD/SUD conditions. If a plan covers nutritional counseling for medical/surgical conditions like diabetes, but not for HD/SUD conditions like anorexia nervosa or bulimia nervosa, the plan is likely not MHPAEA compliant. This is yet another area that the DOL cited 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 more than 1 .2 million attendees. Plan sponsors should review any limitations or exclusions to nutrition counseling coverage to ensure they are applied equally to medical/surgical and HD/SUD conditions.
The report’s in-depth discussion of plan and issuer compliance with NQTL benchmarking requirements provides much useful information to plan sponsors when conducting and reviewing their own NQTL analyses. Plan sponsors should consider paying additional attention to the five common areas of non-compliance discussed here, as the DOL will likely continue to focus on these areas in future NQTL benchmarking applications.