By: HUB’s EB Compliance Team
The U.S. Department of Labor (“DOL”) recently released its Mental Health Parity and Addiction Equity Act (“MHPAEA”) Enforcement Fact Sheet (and Appendix). These documents give glimpses of the kinds of issues the DOL is seeing. They can serve as a roadmap for employers to watch out for these same issues in their plans. The examples the DOL gave included:
- Annual visit limits. Some plans were imposing an annual office visit limit on benefits for alcohol and substance abuse, in violation of MHPAEA. Specifically, this was a treatment limitation that applied only to substance use disorder benefits and not to medical surgical benefits. The plans removed the limits and had to reprocess any denied claims.
- HUB Point: While this would probably rarely be seen in most plans, it is worth making sure that no such limits are imposed.
- Restrictive financial requirements. A plan was applying a $35 copayment for the first three medical/surgical office visits and 30% coinsurance after that. However, all mental health and substance use disorder office visits were charged the 30% coinsurance. The plan provisions were changed and participants had to be reimbursed a total of $1,559 for the excess cost sharing they paid.
- HUB Point: Again, this kind of design should be rare, but employers should keep an eye out for any time mental health or substance use disorder benefits are charged differently for treatment in the same setting.
- Restrictive visit limits for outpatient mental health and substance use disorder treatment. In looking at a service provider (like a third-party administrator), the DOL found that some plans they serviced imposed a medical necessity review requirement on outpatient mental health and substance use disorder (MH/SUD) benefits after 30 visits. The DOL discovered that the plans were allowing 52 visits before requiring any additional medical necessity review of medical/surgical benefits. The service provider was also unable to show that it applied similar factors in establishing the two different review requirements. The factors for review were adjusted and the number of visits required before a medical necessity review for MH/SUD benefits was increased to 52. Claims were reprocessed and the service provider issued payments totaling $19,744 to make up for improperly denied claims.
- HUB Point: This was a service provider issue, and deals with their own internal process, which may be difficult for an employer to see. However, if employers become aware of this type of issue, they should work with service providers to make sure these types of limitations are applied consistently. Periodic claims audits and health management reviews (incorporating MHPAEA compliance reviews and questions) are also recommended for self-funded plans.
- Limits for drug screening removed. The DOL also found that drug screening tests were treated as not “medically necessary,” only for individuals who had been diagnosed with a substance use disorder. Therefore, they were not paid. The service provider could not show that comparable processes, strategies, evidentiary standards and other factors were used to apply this non-quantitative treatment limitation (“NQTL” – basically, a non-numerical limitation) to medical/surgical benefits. As a result, the service provider had to allow drug-screening claims with a diagnosis of addiction. It also conducted a national training for its claims reviewers on the new requirements. Claims were reprocessed resulting in $146,278 in payments made to participants.
- HUB Point: This is another service provider internal process that may be difficult for employers to monitor. However, it is likely that the employers sponsoring these plans were ultimately required to pay for these claims since most service providers will not assume responsibility for paying claims.
The MHPAEA rules can be difficult to follow, but these enforcement actions provide some concrete examples of problematic designs and practices. Applying different cost sharing rules to MH/SUD benefits than to medical/surgical benefits in the same classification (e.g., inpatient v. outpatient, in-network v. out-of-network) should be easier for employers to spot since they will show up in benefit communications. Others, like a service provider’s rules on medical necessity review, are out of an employer’s immediate view. However, to the extent employers become aware of potential different treatment of MH/SUD claims and medical/surgical claims, they should consider asking questions of their carriers and other service providers.
Additionally, employers with self-insured plans should consider conducting periodic claims audits and reviews as well as reviewing their program structure, SPDs and disclosures to participants related to medical necessity and benefits denials to evaluate MHPAEA compliance. Fully insured plans should consider confirming with vendors that they are compliant with MHPAEA and should request documentation showing this. As a reminder, the DOL’s self-compliance tool includes items to review in evaluating compliance with MHPAEA such as medical management standards, network and plan designs, and plan precertification requirements, exclusions or limitations. It can serve as a useful framework for these types of reviews.
NOTICE OF DISCLAIMER
The information herein is intended to be educational only and is based on information that is generally available. HUB International makes no representation or warranty as to its accuracy and is not obligated to update the information should it change in the future. The information is not intended to be legal or tax advice. Consult your attorney and/or professional advisor as to your organization’s specific circumstances and legal, tax or other requirements.