April Handlir (3)

By April Handlir, EHD Compliance Manager

Let us begin with understanding who needs to comply with the MHPAEA.

  1. Small group (under 50) fully insured – This segment of GHPs must comply with the ACA (Affordable Care Act) and must offer EHBs (essential health benefits) if they offer a GHP, therefore the QTL and NQTL parity is critical. The insurance carrier handles the NQTL comparative analysis. The fiduciary must request and maintain a copy of the analysis.
  2. Small group (under 50) self-funded/level funded – This segment of GHPs is exempt from the MHPAEA (unless state law dictates otherwise) and the comparative analysis. Verify with the carrier.
  3. Large group (50+) fully insured – This segment of GHPs must comply with MHPAEA. The insurance carrier handles the NQTL comparative analysis. The fiduciary must request and maintain a copy of the analysis.
  4. Large group (50+) self-funded – This segment of GHPs must comply with MHPAEA and the NQTL comparative analysis is the fiduciary responsibility.
  5. Church plans – This segment is exempt from the MHPAEA and the comparative analysis.

What are the timing requirements for the DOL, HHS, or the Treasury when auditing a GHP? Side note: Many states are currently performing their own audits.  Fact Sheet: MHPAEA | U.S. Department of Labor

  1. 10 days – from the date of the request the plan sponsor/issuer has 10 days to produce the NQTL Comparative Analysis.
  2. 10 additional days – if the comparative analysis is deemed insufficient (which it will be, not one analysis has passed the audit), the plan sponsor/issuer must produce the additional required information in the next 10 days.
  3. 45 days – if determined noncompliant the plan sponsor/issuer will need to provide the steps they will take to be compliant and the additional details requested.
  4. 7 days – if the plan is still determined to be noncompliant all enrollees must be notified of what was not compliant and a copy of that notice provided to the appropriate Department.

Now that we have the basics out of the way, why are we talking about MHPAEA again? The DOL is auditing some big-name carriers, one is Capital Blue Cross (CBC). Many clients are receiving email notifications from a DOL representative. We have confirmed these emails are legitimate. Model communications for enrollees is provided. CBC is currently confirming the process with legal and the first step should be to request an audit for the period of time the DOL requires. Even if you are unable to provide the required data in the timeframe requested, be sure to respond to the email with the steps you are taking. The email discusses the ongoing communications the DOL has had with CBC regarding the exclusion of ABA (applied behavioral analysis) therapy which is an analysis for ASD (autism spectrum disorder) that focuses on understanding the behavior of that specific diagnosed individual. The treatment is based on the motivation of each behavior of each individual and in turn applying positive reinforcement as the main means of correction. The ideal is to build that individuals skills (communication, social, living) while reducing harmful (self and others) and unhelpful behaviors. There are multiple techniques that can be applied but it takes a lot of dedication, time, and follow-up for measurable change. The treatment can range from 10 hours for less critical cases to upwards of 40 hours for a severe ASD diagnosis. The coverage can be costly. With the growing number of diagnosed children with ASD, this cost could impact the GHP claims. An annual average cost for a 10 hour a week therapy is $39,000  but for a severe 40 hour week therapy the cost could range from $120,000-$312,000. Typically the average is $20,000 to $100,000 annually. 

There are other diagnosis that utilize ABA therapy such as ADHD and OCD.  

ABA falls within the NQTLs (non-quantitative treatment limits) for MHPAEA and if ASD is covered, ABA therapy cannot be excluded. Simply put, limits/exclusions/annual maximums cannot exist if they do not also exist on the M/S (medical/surgical) side of the benefits. Most plans are designed with exclusions or limits applying to the ABA. The DOL is focused on removing this benefit restriction. 

Now would be a great time to reference the 2025 blog: Mental Health Parity: Still the Law, Still a Puzzle (But wait, there is a Pause) – EHD Insurance.

Building the entire timeline is critical for understanding the development of the act.  

  1. 2008 – MHPAEA signed into law: financial requirements, QTLs, and lifetime and annual dollar limits must be equal to M/S benefits if MH/SUD (mental health/substance use disorder) benefits are offered. IN EFFECT
  2. 2010-2013 – MHPAEA Final Rules effective 2014: applied parity to all 6 benefit classifications, NQTLs (prior auth, exclusions, network standards) and parity for financial QTL and NQTLs. All exclusions must mirror the M/S benefit under the same classification. IN EFFECT
  3. 2014 – ACA prohibits the annual and lifetime dollar limits on EHBs (essential health benefits) which include MH/SUD. This impacted FI plans only. IN EFFECT
  4. 2021 – CAA (consolidated appropriations act) effective February 2021: Requiring ALL GHPs to perform and maintain a written NQTL Comparative Analysis, provide the results upon request to the DOL within 10 business days, and prove the NQTLs are not more restrictive than the M/S benefits restrictions in the same benefit categories. IN EFFECT
  5. 2022-2024 – All documented NQTL analysis submitted to the DOL for audit failed. Thus, the communication was reborn that no GHP can justify the exclusion of ABA therapy if the plan covers a diagnosis for ASD. 
  6. September 9, 2024 – The final rule reinforces the parity obligations for NQTLs, requiring all plans offering MH/SUD must follow the DSM (diagnostic statistical manual) and ICD (international classification of disease) guidelines. IN EFFECT. They must also meet the documentation requirements, and the introduction of “meaningful benefits” rule was born. This rule means if you cover the MH/SUD condition you must cover across all classifications. This translates to you can no longer exclude ABA since this is a meaningful benefit. PAUSED
    – Plan years on/after 1.1.2025 – NQTL documentation, process, and design requirements. PAUSED
    – Plan years on/after 1.1.2026 – “Meaningful benefits” requirement, and outcomes-data evaluation. PAUSED
  7. January 2025 – The great PAUSE! This rule only pauses the required signature of the fiduciary attestation requirement, “meaningful benefits”, outcomes-data evaluation, new NQTL comparative analysis (not existing), new NQTL design, factor, and evidentiary-standards prohibitions, network adequacy and access requirements for NQTLs, not the analysis itself. PAUSED

What does this all mean? Having ABA exclusions or dollar caps that do not equal that of the M/S benefits in the same category is not allowed therefore when challenged by the DOL on the exclusion of ABA therapy it will be, as they say, “impossible to defend”. The DOL is coming after GHPs and carriers. Now is the time to hear the warning. The $100 per day per affected individual for each day of non-compliance will be enforced by the IRS. ERISA does not enforce plan penalties, but they can impose fiduciary responsibility which is personal liability. As a great ERISA attorney says, “they can come for your house, your car, your boat”, take your fiduciary responsibility seriously.

We continue to run from the MHPAEA compliance requirements, but it is gaining momentum and it will catch-up!