During the pandemic, mental health has become an increasingly important issue for employers and regulatory agencies. As described in my prior client alert, Regulators Put A Spotlight On Transparency For Health Plans, Congress used the Consolidated Appropriations Act, 2021 (the “CAA”) to require group health plans to make complex Mental Health Parity and Addiction Equity Act (“MHPAEA”) compliance documentation available to federal regulators starting February 10, 2021. However, the guidance necessary to provide such documentation was not included in the CAA, leading to many unanswered questions for plan sponsors, insurers, and plan service providers. On April 2, 2021, the regulatory agencies finally answered employers’ questions to enable them to comply with the new comprehensive comparative analyses requirements. This article briefly summarizes the new guidance and next steps for plan sponsors.
DOL MHPAEA Self-Compliance Tool and Minimum Content Requirements
Starting February 10, 2021, group health plans were required to make compliance documentation available to federal regulators upon request, which contains comprehensive analyses regarding nonquantitative treatment limitations (“NQTLs”) and an evaluation of the plan’s compliance with MHPAEA. The recent guidance, in the form of FAQs, clarifies that the Department of Labor MHPAEA Self-Compliance Tool should be used in performing and documenting the comparative analyses of NQTLs. Employers that sponsor group health plans will also be pleased to find that the FAQs provide guidance on the specific minimum content requirements of the analysis, which are listed in the text of the guidance.
“Inadequate” Comparative Analyses
According to the regulatory agencies, upon receipt of a comparative analyses report by a plan or insurer, the regulatory agencies will deem the report inadequate if it is too generalized and conclusory, or if it lacks specific supporting evidence and detailed explanations. “Document dumping” will also fail to satisfy the requirements; however, the regulatory agencies will seek records and documentation to support each analysis and conclusions, such as samples of claims that were covered and denied, details on application of standards, internal testing and review, and compliance documents produced by plan service providers. Some of the NQTLs that the regulatory agencies are specifically focused on include preauthorization requirements, concurrent review, standards for providers to be part of a network (including reimbursement rates), and out of network reimbursement rates.
Noncompliance with the new MHPAEA reporting requirements could result in a corrective action plan and the submission of additional comparative analyses within 45 days. If the additional submissions remain inadequate and do not demonstrate compliance, further consequences could include notifying plan participants that the plan is non-compliant with MHPAEA, notifying the relevant states of the noncompliance, and other review processes.
Finally, the regulatory agencies also clarified participant rights with respect to the comparative analyses. Under the guidance, any comparative analyses performed under the plan and other applicable information under the CAA must be made available to participants and beneficiaries on request. Plans and insurers also must make available their comparative analyses and related information to applicable state authorities on request.
Next Steps for Plan Sponsors and Plan Service Providers
These MHPAEA reporting requirements are currently in effect, meaning the regulatory agencies could request a plan’s full report at any time. Plan sponsors should work with their attorneys, insurance carriers, TPAs, and other service providers to formalize the comparative analyses required, gather related documentation, and review plan designs to ensure they are compliant with the new guidance.
For questions on how to comply with these new MHPAEA reporting rules, please contact Caroline Nelsen at 402-633-9575 or firstname.lastname@example.org.