As we have discussed in prior blog posts here and here, noncompliance with the Mental Health Parity and Addition Equity Act (the “MHPAEA”) continues to be a source of significant potential legal liability for employers that sponsor group health plans as well as for their third-party claims fiduciaries or health insurers. As further evidence of that trend, a proposed class action lawsuit has recently been filed against Blue Cross and Blue Shield of Texas (“BCBSTX”), as a designated claims fiduciary or health insurer under the class members’ employer-sponsored group health plans, for alleged violations of the MHPAEA. In particular, the class claims that BCBSTX imposed more restrictive standards on coverage of residential mental health care than the standards applied to coverage of care at skilled nursing facilities. Under the MHPAEA, employer-sponsored group health plans and health insurers that provide mental health or substance use disorder benefits are prohibited from imposing less… Continue Reading
The DOL and UnitedHealthcare (“UHC”) recently reached a settlement agreement for UHC’s alleged violations of the Mental Health Parity and Addition Equity Act (the “MHPAEA”). Under the MHPAEA, employer-sponsored group health plans and health insurance issuers that provide mental health or substance use disorder (“MH/SUD”) benefits are prohibited from imposing less favorable benefit limitations on those benefits than on medical/surgical benefits. In its investigation, the DOL found that UHC, among other things, “systematically reimburse[d] participants and beneficiaries for out-of-network mental health services in a more restrictive manner than for out-of-network medical and surgical services.” This case is another indication that MHPAEA enforcement is a high priority for the DOL. As discussed in our prior blog posts here and here, the MHPAEA requires employer-sponsored group health plans that impose nonquantitative treatment limitations (“NQTLs”) on MH/SUD benefits to perform and document a comparative analysis of the design and application of NQTLs. This… Continue Reading
As discussed in our prior blog posts, available here, here, and here, an employer must maintain documentation demonstrating that its group health plan is compliant with mental health and substance use disorder parity rules. The DOL has made compliance with these rules a high priority, and DOL enforcement efforts have begun. Employers should follow up with their medical, network, prescription drug, and other third-party service providers to define expectations and set deadlines for the production of information that employers need for the required reporting. Given the amount of detail, effort, and coordination that this compliance documentation requires, employers should ensure that a compliant report can be timely provided if there is a DOL inquiry.
As discussed in our prior blog post here, effective as of February 10, 2021, employer-provided group health plans that impose nonquantitative treatment limitations (?Ç£NQTLs?Ç¥) on mental health or substance use disorder benefits (?Ç£MH/SA Benefits?Ç¥) must have documentation demonstrating that the NQTLs satisfy the mental health and substance use disorder parity rules (?Ç£Compliance Documentation?Ç¥). As discussed in another one of our prior blog posts here, the DOL has identified particular NQTLs on which it will focus its enforcement efforts. The DOL also clearly communicated that general statements to the effect that the plan has compliant processes will not meet the Compliance Documentation requirements. We have noted that some third party administrators are producing reports and other documents that fail to satisfy the Compliance Documentation requirements. For example, such documents may refer to the administrator?ÇÖs internal policies or procedures without adequately describing them, or they may simply incorporate internal policies by reference… Continue Reading
As discussed in our blog post here, effective as of February 10, 2021, an employer-sponsored group health plan that imposes nonquantitative treatment limitations (?Ç£NQTLs?Ç¥) on mental health or substance use disorder (?Ç£MH/SUD?Ç¥) benefits must have documentation of a ?Ç£comparative analysis?Ç¥ that must demonstrate the NQTLs imposed under the plan for MH/SUD benefits are not more restrictive than the NQTLs that apply to substantially all medical/surgical benefits in a particular classification. Generally, an NQTL is a limitation on the scope of benefits for treatment that is not expressed numerically (e.g., a prior authorization requirement). Recent DOL FAQs state that, in the near term, the DOL expects to focus on the following NQTLs in its enforcement efforts: Prior authorization requirements for in-network and out-of-network inpatient services; Concurrent review for in-network and out-of-network inpatient and outpatient services; Standards for provider admission to participate in a network, including reimbursement rates; and Out-of-network reimbursement rates… Continue Reading
Court Finds Exclusion for Autism Treatments Violates the Mental Health Parity and Addiction Equity Act
In Doe v. United Behavioral Health, No. 4:19-CV-07316-YGR (N.D. Cal. Mar. 5, 2021) a federal district court in California recently considered a plaintiff?ÇÖs claim that an exclusion from coverage for ?Ç£applied behavior analysis?Ç¥ and ?Ç£intensive behavioral therapies?Ç¥ (the ?Ç£ABA/IBT Exclusion?Ç¥) used to assist children with Autism Spectrum Disorder (?Ç£Autism?Ç¥) violated the federal Mental Health Parity and Addiction Equity Act (the ?Ç£Parity Act?Ç¥). The plaintiff, as the representative of her minor son who was diagnosed with Autism, was covered under an employer-sponsored, self-funded group health plan subject to ERISA.?á The court held that the ABA/IBT Exclusion violated the Parity Act for two reasons. First, the court found that the ABA/IBT Exclusion, on its face, created a separate treatment limitation applicable only to services for a mental health condition (in this case, Autism). Second, the court concluded that the ABA/IBT Exclusion constituted a more restrictive limitation for a mental health condition than… Continue Reading
We will begin providing periodic updates on upcoming benefit compliance and/or plan amendment deadlines so that you can add them to your to-do list. Each deadline will have links to our prior blog posts that provide more detailed information about that subject.?á As of February 10, 2021, an employer-sponsored group health plan that imposes nonquantitative treatment limitations (?Ç£NQTLs?Ç¥) on mental health or substance use disorder benefits must make available to federal agencies, upon request, a comparative analysis of the design and application of NQTLs, including the specific findings and conclusions reached by the plan and any results of the comparative analysis that indicate the plan is or is not in compliance. For more information, please read our blog post here.
The Consolidated Appropriations Act, 2021 (the ?Ç£CAA?Ç¥) requires an employer-sponsored group health plan that imposes nonquantitative treatment limitations (?Ç£NQTLs?Ç¥) on mental health or substance use disorder benefits to perform and document a comparative analysis of the design and application of NQTLs. For example, a plan that imposes prior authorization requirements on any mental health or substance use disorder benefits would need to document: (i) all the benefits that require prior authorization; (ii) the factors used to determine which benefits were subject to prior authorization, such as excessive utilization or high variability in cost per episode of care, and whether any factors were given more weight than others and why; (iii) the sources used to define the factors, such as internal claims analysis or national accreditation standards; and (iv) that the process, strategies, and evidentiary standards used in applying prior authorization requirements are comparable and no more stringently applied to mental… Continue Reading
Last week, HHS issued a Notice of Proposed Rulemaking that proposes changes to the HIPAA Privacy Rule that will affect HIPAA privacy policies and procedures for employer group health plans.?á The proposed revisions affect (i) an individual?ÇÖs right to access ?Ç£protected health information?Ç¥ (?Ç£PHI?Ç¥), (ii) the content required in the Notice of Privacy Practices, and (iii) the ability to use and disclose PHI based on professional judgment, to avert a threat to health or safety, or for coordination of care and case management.?á HHS proposed that compliance with the changes would be required within 180 days after the effective date of a final rule.?á HHS has requested comments on the proposed changes within 60 days after their publication in the Federal Register, which publication should occur soon.?á The Notice of Proposed Rulemaking is available here.
The DOL released an updated tool to help employer-sponsored group health plans comply with the federal Mental Health Parity and Addiction Equity Act (?Ç£MHPAEA?Ç¥). In general, the MHPAEA requires that financial requirements under a group health plan (such as copays) and treatment limitations (such as prior authorization) on mental health and substance use disorder benefits be comparable to, and applied no more stringently than, those that apply to medical and surgical benefits under the plan. The DOL last updated the tool in 2018. This updated version includes FAQs issued in 2019, additional compliance examples, best practices for establishing an internal compliance plan, and examples of plan provisions that may indicate a potential MHPAEA violation. In particular, the concept of the ?Ç£internal compliance plan?Ç¥ is new, and although not required under the MHPAEA, the DOL?ÇÖs goal for the internal compliance plan was to show how an internal compliance strategy can assist… Continue Reading