Situation:  Under the Federal Mental Health Parity and Addiction Equity Act of 2008, financial requirements and treatment limitations for mental health or substance use disorder benefits may not be more restrictive than those that apply to other medical and surgical benefits.  The 2022 Report to Congress on the Paul Well Stone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 suggests that health plans and health insurers are failing to provide parity for mental health and substance use disorder benefits.  Further, the Consolidated Appropriations Act of 2021 requires all group health plans and health insurers offering mental health and substance use disorder benefits and other medical benefits to perform and document a comparative analysis of the design and application of non-quantitative treatment limitations (NQTL).  In 2022, the Department of Labor and the Department of Health and Human Services, through CMS, has alerted that they are stepping up enforcement.

Issues:

• The parity law is important to assuring that individuals in need of mental health or substance use disorder treatment receive the necessary treatment.
• A determination of non-compliance by DOL would require the insurer to notify all enrolled individuals that coverage is noncompliant with the Mental Health Parity and Addiction Equity Act.
• Any relevant plans or insurers who are not in compliance with the Act could be sued by employees for failure to provide parity.

Solution:  If you have done it yet, get your comparative analysis done now!  Inquire with your TPA and/or benefits managers to see if the analysis has been done, but do not rely on them having done it.  Some will not.  At Offit Kurman, we have a team comprised of lawyers and a health insurance expert that can provide this needed service.  The process includes review and analysis of plan document terms and Summary Plan Description as well as policies and collaboration with service providers.  Any DOL audit will be extensive and will not only request the comparative analysis but also other specific supporting documentation.  The best practice is to get your analysis complete and supporting documentation in order.  Further plan to at least annually review and update your analysis and supporting documentation.