Perspective Summary
The Mental Health Parity Addictions Equality Act (MHPAEA) was passed in 2008 and then later amended by the Affordable Care Act (ACA), the 21st Century Cures Act, and the Employment Retirement Income Security Act (ERISA). Currently, the Health and Human Services (HHS), the Department of Labor (DOL), and the Treasury (known as “The Departments”) have proposed changes to Congress based on the findings of The Employee Benefits Security Administration’s (EBSA) recent audit. Subsequently, they report their recommendations for consideration by way of the enforcement fact sheet and the Comparative Analysis Report.
In short, this act refers to the mental health and substance abuse benefit design of your employer-sponsored medical plan(s). It states these benefits should be without limitations, equivalent to or less restrictive than that of the medical/surgical (M/S) benefit design within your employer-sponsored plan(s). Including financial countenances as it relates to the copay, coinsurance, deductible, and out-of-pocket limit design applied to the categories of each benefit. With mental health and substance abuse benefits, non-quantitative treatment limitation (NQTL) compliance risks are inevitable if the employer proposes limits and maximums within the benefit categories of the employer-sponsored medical plan(s).
These categories of financial equality include inpatient out-of-network, inpatient in-network, outpatient out-of-network, outpatient in-network, emergency services, and prescription drugs. Additionally, medical necessity, prior authorization, and step therapy guidelines need to be without limitations, equivalent to or less restrictive than that of the M/S benefit design within the employer-sponsored medical plan(s).
The Bolt – Approved:
December 29, 2022, the Consolidated Appropriations Act (CAA) added a sunset provision pertaining to self-funded non-federal governmental plans (those sponsored by State or local governmental employers) – stating they can no longer opt out of the MHPAEA (collective bargaining plans have a little leeway). This is per a release from July 2023 by The Departments as given by the results of the analysis completed by EBSA.
Who…
- Is impacted:
- Fully Insured Plan Sponsors – Group plans with 51+ – Falls to state law where the plan is written. All 50 states have reform – State Regulated Health Benefit Plans | Autism Speaks.
- Self-funded plan sponsors – Group plans with 51+ employees – Falls to the Federal Law under ERISA not the state law.
- Is not impacted:
- Group plans with less than 51 employees both Fully Insured and Self-funded plan sponsors.
- Can potentially opt out:
- State and local governmental plans that are SF can opt out of MHPAEA requirements if specific administrative steps are adhered to.
- Is exempt:
- Retiree-only plans.
- Individual Market Plans.
What…
If the Department requests the analysis the employer will have a 14–30-day grace period to produce the analysis. If the employer-sponsored medical benefit plan(s) are found to not be compliant the employer will have 45 days to bring the plan(s) compliant.
The plan could be held responsible for re-processing and paying any denied claims within the categories. If the plan(s) is self-funded and the claim breaches the stop loss deductible, the employer depending on the provisions within the stop loss contract will most likely be responsible for the claim(s)– i.e., paying out-of-pocket. If the employer fails to make the plan(s) compliant the employer will need to notify all plan members of the results. The Departments will notify the state – if the state becomes involved there may be additional penalties passed along to the employer (each state’s regulations are different). Additionally, there could be fines assessed as an excise tax of $100 per individual per day for any violations EBSA would uncover.
It is the recommendation of EHD to evaluate your plan restrictions and remove any annual or lifetime limits as they pertain to Autism Spectrum Disorder (ASD) and specifically remove any limits or maximum annual costs from the Applied Behavioral Analysis (ABA) benefit design.
When…
Focus on evaluating the employer-sponsored medical plan(s) during the 2024 plan year as you work with your EHD representative for changes to begin at the 2025 renewal. If all proposed changes submitted to Congress are approved, they will become effective for all plans beginning January 1, 2025.
Where…
The employer will need to pursue completing an NQTL analysis mandated for all plan sponsors in 2021 to have a written comparative analysis showing equality for any NQTLs within the category. The report only needs to be given to The Departments upon request.
Neither EHD nor the employer can complete this evaluation. As with most legislative requirements, the ask is not “easy”; outside vendors have difficulty obtaining the needed information and third-party administrators (TPA) can often supply an analysis based on the standard insurance offering but this doesn’t help your employer-sponsored medical plan(s). EHD is working diligently to obtain workable options for our clients to partner with to complete the comparative analysis.
Why…
The current comparative analysis completed by the EBSA reflects serious deficiencies in the plans and issuers used in the study. There should not be a restriction imposed on an MH diagnosis within the categories that is greater than that of M/S benefits.
How…
Assessing your employer-sponsored medical plan(s) is not an easy task. EHD can aid with basic plan design adjustments by contacting your carriers now, but it will be necessary to have a complete NQTL analysis. If you have completed an analysis in the past, you will have to have an updated compliant analysis to include the proposed changes. Communication has not been released if The Departments will mandate a copy of the plan analysis going forward.
To come…
- The next step will detail how to move forward with your employer-sponsored medical plan(s).
- The specified proposed changes.
- Partner references for completing the NQTL analysis.
- EHD will keep you informed as details are released on the proposed changes and how they will affect the employer-sponsored medical plan.
