The Tri-Agencies – the U.S. Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Treasury – published their first annual report on compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA), as amended by the Consolidated Appropriations Act, 2021 (CAA). Although the 2022 MHPAEA Report to Congress stated that the Tri-Agencies had issued a preliminary determination of noncompliance for many plans and issuers, it stopped short of naming names, as it has made no final determinations. As a result, group health plans and health insurance issuers still may engage in corrective action, which could help them avoid the unwanted trifecta of:
- Published recognition of their noncompliance in the second annual report
- Notice to their plan participants and enrollees of their noncompliance, and
- Notification to the state regulator
The CAA explicitly required plans and issuers to apply non-qualitative treatment limitations (NQTLs) to mental health and substance abuse disorder benefits comparably to how it would apply them to medical or surgical benefits in the same classification. In addition, beginning in February 2021, plans and issuers were required to document comparative analyses showing that their processes, strategies, evidentiary standards, and any other facts they consider in applying NQTLs are comparable between the two different types of benefits. The Tri-Agencies also issued guidance about what constituted an adequate comparative analysis.
Nonetheless, responses were slow when the Tri-Agencies began requesting documentation of comparatives analyses from plans and issuers in April 2021. Plans and issuers largely blame this on the Tri-Agencies’ failure to provide a standardized template or format to exhibit a sufficient comparative analysis. The guidance provided also did not specifically identify minimum requirements. In addition, state laws also may place other requirements on plans and issuers.
Furthermore, some plans and issuers may have mistakenly believed that their third-party administrators or servicers would provide the necessary comparative analyses. Although DOL has the jurisdiction over plans and issuers to enforce the MHPAEA, it does not necessarily have the same authority over third-party servicers unless it can determine that they are fiduciaries under ERISA. As a result, as part of its report, the Tri-Agencies recommend that Congress amend ERISA to allow it to enforce parity measures against services providers and other entities that offer administrative services to ERISA group health plans. They also want the authority for DOL to assess civil penalties against plans that fail to comply with MHPAEA.
HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.
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