The Departments of Labor, Health and Human Services (“HHS”), and the Treasury (the “Tri-agencies”) released their 2022 annual report to Congress on the Mental Health Parity and Addiction Equity Act (“MHPAEA”) on Tuesday, January 25. The Employee Benefits Security Administration (“EBSA”) released an FY 2021 MHPAEA Enforcement Fact Sheet alongside the annual report. Together, the Tri-agencies’ report and EBSA fact sheet provide additional, important information for group health plans and health insurance issuers looking to comply with the 2021 Consolidated Appropriations Act’s (“CAA”) non-quantitative treatment limitation (“NQTL”) comparative analysis requirements. But plans and issuers need additional agency guidance.
Much of the report is dedicated to breaking down EBSA and HHS enforcement under the CAA during 2021, detailing the number of comparative analysis requests issued, “insufficiency” letters issued in response to the comparative analyses received, and initial determinations of non-compliant NQTLs. The Tri-agencies were critical of overall compliance—indeed, they found no comparative analyses to be initially compliant—but have not yet issued any final determinations of non-compliance, although some inquiries are ongoing.
The Tri-agencies’ report also confirms the enforcement priorities laid out in EBSA’s FAQs Part 45, providing additional data on the NQTLs for which the Tri-agencies most frequently requested comparative analyses and identifying representative themes and examples of the ways in which the submitted comparative analyses fell short. Building on those themes, the report provides some commentary on what constitutes a compliant comparative analysis. Notably, this includes demonstration of parity compliance for NQTLs as applied, which may be difficult to measure. Prior Tri-agency guidance, including EBSA’s Self-Compliance Tool, has emphasized that outcomes are not determinative of compliance, but that outcomes analyses may be used to identify “red flags” or areas for compliance review.
The 2022 annual report is only the beginning of the post-2021 CAA era. The report indicates that the Tri-agencies intend to promulgate additional regulatory amendments in 2022 via notice and comment rulemaking. In addition, the Tri-agencies seek enhanced enforcement tools—namely the authority to assess civil monetary penalties for parity violations, expanded scope of enforcement authority, the possibility of participant and beneficiary recovery for parity violations, among other changes—via Congressional action.
For a more detailed breakdown of the Tri-agencies’ report findings, read Crowell’s 2022 MHPAEA Annual Report Client Alert. And for more information, contact the blog authors or your regular Crowell & Moring contact.