With increasing regulatory scrutiny and litigation by employees against employer-sponsored group health plans, now might be a good time to find out if your employer-sponsored group health plan complies with gender parity rules. behavioral health.
In 2008, Congress passed the Mental Health Parity and Substance Abuse Equity Act (MHPAEA). This law requires large group health plans that cover mental health and/or substance use disorder benefits to provide access to these benefits in the same manner as the plan provides access to medical/surgical benefits. .
In 2010, the Affordable Care Act expanded the scope of the MHPAEA to also apply to certain individual and small group health plans.
The Departments of Health and Human Services, Labor, and Treasury (Tri-Agencies) and State Insurance Departments have been tasked with enforcing the MHPAEA, and the Tri-Agencies have published final regulations in 2014 implementing the law.
In December 2020, Congress acted again, this time passing the Consolidated Appropriations Act of 2021, which, among other things, requires group health plans to perform and document a benchmarking of the plan’s compliance with the rules. of the MHPAEA regarding certain coverage limitations placed on mental health or substance use disorder benefits.
The 2021 Appropriations Act requires the three agencies to audit a number of health plans each year and report the results of those audits annually to Congress. Any health plan that is determined to be in violation of the MHPAEA will be publicly named and required to take corrective action, including notifying all plan enrollees of the non-compliance.
Impact on employers
It is important to note that the MHPAEA imposes the obligation to comply with the law on the sponsor of the group health plan. This means that, in the case of an employer-sponsored group health insurance plan, the employer is responsible for ensuring that their health insurance plan complies with the MHPAEA.
While employers previously could rely on their Third Party Administrator (TPA) to ensure compliance with various health plan laws, not all TPAs are able or willing to provide benchmarking when the three agencies knock on the door. . This is because benchmarking is extremely difficult to create and will vary depending on the specific plan benefits the group health plan chooses to cover.
Historically, the Department of Labor, through its MHPAEA regulator, has audited the health plans of employer groups for compliance with the MHPAEA and worked with those plans on corrective action when issues arise. of compliance have been identified. The results of these audits were provided to Congress in a “fact sheet” that did not identify the plan or the name of the proponent of the non-compliant plan.
As part of the CAA 2021, this information will be made public. This is a significant change as employees have been increasingly active in suing the group health insurance plans of employers suspected of MHPAEA violations.
Now, employees will be armed with a notice from the DOL that their employer’s plan did not comply with federal law and a notice from their employer’s plan notifying the employee of the plan’s non-compliance. . This could cause significant problems for employers defending against such lawsuits. Since the 2021 CAA does not provide recourse for employees, they are encouraged to seek recourse through the courts for unpaid claims that they believe were wrongfully denied because their plan was in violation of the MHPAEA.
In September 2022, the U.S. House of Representatives passed the Mental Health Matters Act, which, if enacted by the U.S. Senate, would give the DOL or a member of the plan specific power to sue employers. for reconsideration and payment of benefits to remedy violations of the MHPAEA. .
What can employers do?
While the current risk to employers of regulatory penalties or litigation may still be relatively low, because the DOL recognizes that developing good benchmarking is very difficult, it is nonetheless time for employers to start preparing. .
First, talk to your TPA to find out what support the TPA can provide in developing the benchmarking you will need to provide to the DOL upon request. This may be something you want to negotiate when renewing your contract with the TPA. It may also be necessary to engage a group of independent consultants to work with the TPA to document sufficient benchmarking for your employer-sponsored group health plan.
You may also seek legal counsel to review benchmarking or specific limits to identify any issues with the MHPAEA so that any compliance issues can be corrected prior to DOL investigation or litigation.
Barry F. Rosen is President and CEO of the law firm Gordon Feinblatt LLC, leads the firm’s Healthcare Practice Group and can be reached at 410-576-4224 or [email protected] Darci M. Smith is an Associate of Gordon Feinblatt’s Healthcare Practice Group and can be reached at 410-576-4153 or [email protected]
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