The DOL Increases Mental Health Parity Enforcement

Mental health issues have been top of mind with employers for months, with the stress of the pandemic driving demand for care among workers even as chronic shortages of mental health professionals makes finding quality care challenging. Now compliance concerns have been elevated as well. The U.S. Department of Labor (DOL) recently announced agreements with United Healthcare and United Behavioral Health (collectively, “UHC”) to settle allegations that UHC violated the federal Mental Health Parity and Addiction Equity Act (MHPAEA). This appears to be the first DOL MHPAEA lawsuit filed against a TPA/insurer; past DOL enforcement efforts have focused on investigations and corrections.

At issue were the following UHC practices:

  • Lower reimbursements for out-of-network, non-physician mental health providers than for out-of-network, non-physician medical/surgical providers
  • Outlier review applied to all outpatient behavioral health psychotherapy and to select medical/surgical services only

DOL also alleged that UHC’s disclosures about these practices violated ERISA. UHC agreed to pay $15.6 million to settle claims brought by the DOL, as well as parallel claims brought by the New York Attorney General and in a class action. 

Health plans being asked to produce comparative analyses of treatment limits

The UHC settlement demonstrates the DOL’s commitment to enforcing MHPAEA – and these efforts seem to be gaining momentum. The Consolidated Appropriations Act of 2021 (CAA) requires that group health plans prepare a detailed, written comparative analysis of the plan’s nonquantitative treatment limits (NQTLs). The DOL is already asking some group health plans to produce a comparative analysis—and within tight timeframes (such as 7-14 days). Given the potential consequences for non-compliance with the CAA (such as having to provide a notice to all plan enrollees about the plan’s non-compliance and inclusion of the non-compliant plan’s identity in an annual public report to Congress), group health plan sponsors should make MHPAEA compliance a top priority and take steps as soon as possible to complete an NQTL comparative analysis required by the CAA.

The carriers for fully insured plans are generally responsible for ensuring the policies they issue are compliant with federal and state mental health parity laws, but employers offering fully insured plans should ask their carriers for assurances that all applicable mental health parity laws are being followed and that the carrier will respond to any requests for the NQTL comparative analysis documentation. 

Self-insured plan sponsors must prepare a comparative analysis

For self-insured plans, the plan sponsor is responsible for ensuring compliance with MHPAEA. As such, sponsors of self-insured plans should be actively working to prepare the NQTL comparative analysis documentation if such documentation does not already exist. Steps towards compliance include: 

  • Contacting the third party administrator (TPA) to establish the level of support it can provide.
  • Asking whether the TPA will produce comparative analysis documentation for all NQTLs that are standard across the plans administered by such TPA. 
  • Working with the TPA to identify any NQTLs that are customized for the self-insured plan and evaluating whether TPA will assist in preparing the comparative analysis for such custom NQTLs or engaging outside assistance to prepare such analysis. 
  • Obtaining review by counsel of comparative analysis to determine if it complies with all aspects of the new CAA requirements. 

For more information about the NQTL comparative analysis requirement, see our prior GRIST on mental health parity compliance. For a list of specific steps towards compliance, see Chapter 6 of Mercer’s Top 10 compliance issues for health and leave benefits in 2022.

Leena Bhakta
by Leena Bhakta

Principal, Mercer Health

Jennifer Wiseman
by Jennifer Wiseman

Principal, Mercer’s Law & Policy Group

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