By: Kaitlyn MacLeod, Esq.

The DOL has just released the long anticipated MHPAEA Report to Congress, outlining the key enforcement results for this past year relating to the NQTL Comparative Analysis requirement under the Consolidated Appropriations Act (CAA) of 2021. Under the CAA, Congress gave the DOL an important new enforcement tool by requiring plans and issuers to provide comparative analyses of their NQTLs upon request and authorize the DOL to determine whether those NQTLs are in compliance.

As part of the CAA requirements, the DOL is required to submit an annual report to Congress on compliance by group health plans with the MHPAEA’s requirements. If your NQTL Comparative Analysis is requested by the DOL, your plan will be named and included in this report.

The DOL is only required to submit 20 comparative analyses to Congress yearly – but the DOL drastically exceeded this requirement by issuing 156 letters to plans about compliance and requesting comparative analyses for 216 unique NQTLs across 86 individual DOL investigations. From these investigations, twenty-six plans have agreed so far to make prospective changes to their plans as currently written.

Not one of the comparative analyses reviewed to date have been sufficient upon initial receipt by the DOL. Many plans failed to comply with the comparative analysis documentation requirement before designing and applying the NQTL and many plans lacked a meaningful analysis and adequate explanation of the plan’s decision-making.

The DOL report’s main takeaway is that many plans and issuers were unprepared for a request of their analysis – and approximately 40% of plans responded to the DOL with a request for extension to compile their analysis. EBSA noted that plans stated they were unable to comply because they erroneously assumed that vendors would prepare a comparative analysis for the plan, or that those vendors would have prepared their own comparative analysis that the plan could rely on – in many cases, vendors had not prepared a comparative analysis that the plan could use.

The DOL has noted that “MHPAEA promotes equal access to treatment for MH/SUDs by prohibiting coverage limitations that apply more restrictively to MH/SUD benefits than for medical/surgical benefits.” The most common NQTLs that EBSA requested a comparative analysis for included:

1. Preauthorization or precertification requirements;
2. Network provider admission standards;
3. Concurrent care review;
4. Limitations on applied behavior analysis or treatment for autism spectrum disorder;
5. Out-of-network reimbursement rates;
6. Treatment plan requirements;
7. Limitations on medication assisted treatment for opioid use disorder;
8. Provider qualification or billing restrictions;
9. Limitations on residential care or partial hospitalization programs;
10. Nutritional counseling limitations;
11. Speech therapy restrictions;
12. Exclusions based on chronicity or treatability of condition, likelihood of improvement, or functional progress;
13. Virtual or telephonic visit restrictions; and
14. Fail-first or step therapy requirements.

This is only a list of the most common requests – plans typically have between 20 and 30 separate NQTLs that plans needs to have on file in case the DOL comes knocking.

The DOL and EBSA have made it clear, mental health is their priority and proactive and rigorous enforcement is vital - and you should make it a priority too!