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Mental Health Compliance Issues | The Phia Group

By: Nick Bonds, Esq.

As 2022 continues chugging along, it’s worth remembering that mental health parity compliance remains a significant issue – not just for health plans, but as a topic of serious discussion for our nation’s leaders.

At the end of January, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) issued their report to Congress, detailing their grave findings on the state of compliance with the requirements of the Mental Health Parity and Addiction Equity Act (MHPAEA). As we’ve discussed previously, the Departments largely found that health plan coverage for mental health and substance use disorder (MH/SUD) benefits is not being kept to the standard they expect.

Broadly speaking, the Departments were alarmed that plans were struggling to perform these written comparative analyses (required by the MHPAEA, as expanded under the Consolidated Appropriations Act), and shocked that many plans were not prepared to provide them with a “sufficient” comparative analysis. The Departments deemed virtually every analysis they were provided was insufficient initially, pointing frequently to a lack of supporting evidence of comparability of MH/SUD to medical/surgical benefits and a lack of specific explanations to justify their non-quantitative treatment limitations (NQTLs). The DOL also took pains to outline other issues, including:

  • Unhelpful comparison charts
  • Outdated and generic analyses
  • Issues with benefits classifications
  • Non-comprehensive identification of NQTL,
  • Lack of application of relevant factors
  • Failure to demonstrate the stringency of how NQTLs were applied

Ultimately, the Departments’ report concluded by posing a series of requests to Congress to enhance their MHPAEA enforcement capability. Most significantly, the Departments pushed for enhanced authority to assess fines and civil penalties for parity violations, as well as expanded jurisdiction over administrators of ERISA group health plans (e.g., TPAs).

The Departments’ report appears to have been taken as something of a call to action, both on Capitol Hill and on Pennsylvania Avenue. The White House released a Fact Sheet ahead of the State of the Union outlining President Biden’s “strategy to address our national mental health crisis.” The Fact Sheet highlighted the intense mental and emotional strain placed on our country with several key indicators, including that two out of five adults report symptoms of anxiety or depression; Black and Brown communities are disproportionately undertreated for mental health conditions; students are about five months behind in math and four months behind in reading compared with students prior to the pandemic; and emergency department visits for attempted suicide have risen 51 percent among adolescent girls.

To address these, the White House proposed a host of strategies, including (among many other things) broad steps to increase the number of MH/SUD providers available, improved access to those providers, and increases to the FY23 budget specifically to step up mental health parity enforcement.

Similarly, Congress has renewed its focus on mental health issues. As one of the few areas with significant bipartisan support, Congressional Democrats and Republicans alike may be eager to move forward with legislation, particularly to show that they can deliver tangible results on a high-profile issue in the lead up to mid-term elections. Both sides have indicated an openness to stricter regulations and tighter enforcement in the wake of the DOL’s report. A chief enforcement mechanism that appears to be on the table: direct fines for violations of the MHPAEA – precisely one of the tools the Departments asked for.

Given that the Departments, Congress, and the White House all appear to be aligning around mental health parity, we may be seeing movement on such legislation (and additional regulations) as early as this summer. Fines for plans that may have unknown parity issues or incomplete comparative analysis could rapidly be coming down the pike.

Mental health parity must necessarily remain top of every group health plan’s list of major compliance concerns for the foreseeable future. To that end, we strongly encourage plans to take a close look at their NQTLs and take all necessary steps to ensure that they have a comparative analysis ready to go for when the DOL, state regulators, or plan participants request it. Beyond fulfilling a compliance obligation, the analysis will ensure that groups better understand how their MH/SUD benefits are being handled and potentially how they can be better tailored to suit the plan’s needs.

Please reach out to with any questions regarding MHPAEA compliance or our NQTL Comparative Analysis service.