Enforcement highlights

Undergoing a federal audit can be costly. Consequently, it’s a good idea to review your mental health and substance use disorder (MH/SUD) coverage for compliance with MHPAEA on a regular basis. Such reviews can help you identify and address issues that could come up in an audit. They can also help ease the burden if you face an audit.

DOL’s FY 2019 MHPAEA Enforcement Fact Sheet includes information about the enforcement activities of both DOL and HHS (specifically CMS). These are the highlights:

• Since October 2010, DOL has conducted approximately 2,000 investigations in which MHPAEA compliance was reviewed. It cited approximately 345 violations involving MH/SUD benefits.
• In fiscal years 2018 and 2019, EBSA received 217 inquiries about MHPAEA.
• In 2019, CMS received 259 complaints. Of those, 61 were addressed by CMS. The remainder required referral to either DOL or a state agency.

The Fact Sheet includes examples of enforcement findings, such as these:

• Impermissible medical-necessity reviews in which requirements were applied more stringently to MH/SUD benefits than to medical/surgical benefits
• Retroactive reprocessing of claims
• Changes to plan terms to accomplish compliance

Highlights from 2020 Report to Congress

DOL’s biennial report 2020 Report to Congress: Parity Partnerships: Working Together describes the department’s enforcement approach. DOL is continuing to shift its enforcement posture to target investigations that have a national impact for the greatest number of health plan participants and beneficiaries. The Report explains that DOL pursues investigations based on leads from other enforcement agencies, feedback from consumer groups, and implementation of advanced case development methods that incorporate various sources.

The report also describes new DOL activity to advance compliance with MHPAEA. To “empower the regulated community to fulfill its obligations under the law,” DOL will develop a roadmap for compliance. This year, it will host a listening session to gather stakeholder feedback.

In addition, DOL has developed a Five-Point MH/SUD Enforcement Evaluation Program. The elements of the program are:

1. Quality assurance review — DOL’s Employee Benefits Security Administration (EBSA) will conduct a quality review of MHPAEA investigations. The review is intended to ensure that EBSA investigators are conducting full and accurate investigations; assess current industry practices and trends; and inform investigator training. 
2. Capturing data on other ERISA violations impacting mental health and substance use disorder benefits — Not all violations of ERISA affecting MH/SUD benefits are MHPAEA violations. That’s why EBSA is updating its information-tracking systems to better track all types of ERISA violations that involve MH/SUD benefits (including those related to ERISA’s fiduciary standards, claims procedures, and reporting and disclosure obligations).
3. Compliance assistance — EBSA will update its self-compliance tool to reflect new trends and red flags. EBSA will solicit public input before finalizing the tool.
4. Stakeholder engagement — DOL explains that stakeholders have shown continuous interest in having an open dialogue with regulators on MHPAEA implementation. To hear feedback on EBSA’s interpretive guidance and enforcement program, EBSA will host a listening session with consumer advocates, group health plan representatives, health insurance issuers, managed behavioral health organizations, provider groups, federal and state regulators, and other interested parties. 
5. FY 2021 national enforcement initiative — EBSA will use the information gathered from its quality assurance review and stakeholder engagement to inform a new national MHPAEA enforcement project for the 2021 fiscal year.

Actions for plan sponsors to consider

As noted above, it’s a good idea to regularly review your plan for compliance with MHPAEA.

If you use service providers, consider coordinating with them to ensure they are administering your plan benefits to comply with MHPAEA.

On all issues involving the interpretation or application of laws and regulations, plan sponsors should rely on their legal counsel for legal advice.