Most group health plan sponsors understand that the Mental Health Parity and Addiction Equity Act (MHPAEA) requires that coverage for mental health conditions and substance use disorders be no more restrictive than coverage for other medical and surgical conditions. In 2020, Congress changed the law to require plans to perform and document comparative analyses of Non-Quantitative Treatment Limitations (NQTLs) by February 10, 2021. The law also required the Department of Labor, Health and Human Services, and the Treasury Department to report back to Congress at the end of 2021 on whether plans are complying with the new law. On January 25th, the agencies published their report, and although nobody in the first wave earned a passing grade, plan sponsors can learn much from the report in order to avoid a similar fate.
According to the report, the DOL issued 156 letters to plan sponsors and insurance providers requesting information about comparative analysis for NQTLs, and the initial responses were all insufficient. But the report also contains helpful information for those sponsors who were not part of the initial investigation.
The agencies characterized the responses as generic, unresponsive, and lacking in sufficient detail and supporting documentation. Examples of common deficiencies include:
- Conclusory assertions without specific supporting evidence or a detailed explanation.
- Lack of meaningful comparison or analysis – typical responses consisted of a table format organized into two columns (one for medical/surgical benefits and another for mental health and substance use disorder benefits) with the same general text in both columns.
- Failure to demonstrate compliance of an NQTL as applied — most comparative analyses failed to evaluate the relative stringency of how the NQTL is applied to mental health and substance use disorders versus medical/surgical benefits.
The report also lists steps some sponsors or insurers have taken to bring their plans into compliance, including removal of these common exclusions:
- ABA therapy for autism.
- Medication assisted treatment for opioid use disorder.
- Nutritional counseling for mental health/substance use disorder.
Other actions included removing limitations on urine drug testing for substance use disorders and blanket pre-certification requirements for mental health and substance use disorder benefits.
Plan sponsors may want to consider taking these steps:
- Conversation with Service Providers. The agencies reported that most sponsors initiated the required comparative analysis only after the investigation started. Sponsors should ask their carriers or third party administrator if they can provide the analysis and ask them to complete the analysis now. Sponsors may also want to ask their service providers whether they should remove any restrictions or limitations on mental health or substance use disorder benefits.
- Perform the Comparative Analysis Now. We understand that several of the most prominent benefits consulting firms do not intend to provide the analysis but a select few have started working with their clients in performing a meaningful assessment of current compliance. If your service providers are unwilling or unable to provide the analysis, you may want to engage a third party to perform the analysis for your plan.
- Update Service Agreements. Consider negotiating with service providers to include the required NQTL analysis. The DOL mandates require ongoing compliance, not just a one-time assessment. Working with qualified service providers who can assist with the necessary NQTL assessment process will be another essential annual compliance service item.
We are available to advise plan sponsors concerning NQTL compliance and related investigations. We are also available to review your summary plan description to help you identify potential NQTLs in your plan. Please contact an Employee Benefits Practice Group team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.