Provided by John Forrest, CHRS, Director of Compliance Services
The Department of Labor (DOL) , the Department of Health and Human Services, and the Treasury jointly post new resources related to Mental Health Parity and Addiction Equity Act (MHPAEA) on a rolling basis. On September 5, 2019 the departments released a frequently asked questions (FAQs) regarding implementation of the MHPAEA. These FAQs contain no new interpretations of the act.
Apex insights on the departments posting. The departments jointly previously released an abundance of guidance on MHPAEA in 2018, however there were no new regulations. The departments provided specific examples and insight into how mental health and substance use disorder (MH/SUD) parity can exist on paper –in a plan document–but in actual practice there may be limitations a plan imposes on MH/SUD coverage relative to medical and surgical care. The 2019 FAQs merely provide more examples of how the final regulations apply to different fact patterns to promote compliance.
For example, a plan may administer benefits with stricter guidelines for mental health medications than for those used in medical and surgical treatments. This may be unintentional due to how pharmacy and therapeutics committees approved MH/SUD drugs compared to other drugs. Likewise, a prior authorization may be unintentionally more difficult to obtain for a MH/SUD inpatient stay than for a medical/ surgical inpatient stay.
New and past guidance make it clear that if the plan denies coverage for a MH/SUD claim, the plan’s criteria for medical necessity for doing such must be made available upon request. It was noted the standard EOB would not meet this requirement.
The DOL has indicated that about half of their investigations into potential MHPAEA violations result in determining there was a violation.
What about an ERISA self -funded plan excluding autism? Employers frequently ask this question. Rules remain vague. A MH/SUD condition may be excluded— but may not have lifetime or annual dollar limits. Visit limits are theoretically permitted, but even these are being challenged. Under ACA, mental health and substance abuse coverage is an essential health benefit (EHB). However, the definition of MH/SUD benefits are unclear. ACA has deferred the MH/SUD coverage definition to each state’s benchmark plan. Which of course varies by state. Self-insured plans are free to choose any state as their benchmark. Over 20 states include applied behavioral therapy (ABA) therapy as an EHB. Which is to say, the remainder do not include ABA therapy.
There are now numerous court cases around these issues where the defendant is a self-funded plan. Many of the cases are not being dismissed on the grounds an ERISA self -funded plan need not adhere to states’ coverage mandates on insurers. Case law will emerge from these court cases.
Summary: It is fair to say the tide is moving quickly in the direction of self- funded employers having to provide coverage for ABA for the treatment of autism. And, the approval process and access to this and all MH/SUD treatment be on par with that for medical and surgical care. Employers might now consider if the time is right to add ABA coverage (if they have not already done so) to their plans. Also, plans should work with their administrators to ensure their prior authorization for MH/SUD care and medications are no more stringent than those for medical and surgical care.