A much-anticipated report on group health plan and issuer compliance under the Mental Health Parity and Addiction Equity Act (MHPAEA) details regulators’ findings, specifically with regard to the required comparative analysis of nonquantitative treatment limitations (NQTLs).
The 2021 Consolidated Appropriations Act (CAA) required agencies to deliver this annual report to Congress, with the first due by Dec. 27, 2021. During 2021, the Department of Labor (DOL) requested comparative analyses from more than 150 plans and issuers. Requests from the Centers for Medicare and Medicaid Services (CMS) went to four nonfederal governmental plans and nine issuers. Interestingly, regulators emphasized that all of the comparative analyses were insufficient when first received. The five main flaws were:
When regulators make a final determination of noncompliance, the report must publicly identify the offending parties. While 45 plans and issuers have received preliminary determinations of noncompliance, the report doesn’t list any offending parties. The review process is ongoing, and how the regulators will treat corrective actions in making final determinations is unclear. Final determinations of noncompliance likely will appear in the next report to Congress.
The report provides valuable insights into current areas of MHPAEA focus for the agencies, which:
The regulators identified the 14 most common NQTLs causing problems:
The CAA requires DOL, Treasury, and Health and Human Services to finalize all NQTL guidance and regulations by June 2022. The departments indicated that they intend to update the self-compliance tool (last updated before the CAA was enacted), continue outreach and education efforts, and increase enforcement activity through the CAA review process as well as litigation. Tellingly, the report doesn’t mention of good-faith efforts or other types of relief, despite otherwise providing a large amount of practical information.
Starting in 2022, the annual report will be due on Oct. 1, and how these reviews develop will be interesting to see. If some version of the Build Back Better Act is enacted this year, the legislation will likely include a provision permitting DOL to impose penalties for MHPAEA violations.
As a result, MHPAEA and NQTL compliance remains a top priority for employer-sponsored coverage in 2022. At a minimum, here are some actions employers should take:
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