A strengthened application landscape
Recent responses to an EBSA survey show just how serious the problem has become. Of 156 letters to group health plans and insurers requesting a parity benchmarking analysis, not one response contained enough information, leading to further investigations and enforcement action.
The DOL and patients have also been successful in bringing health lawsuits to enforce parity. These legal challenges relate to treatment coverage, level of care guidelines, reimbursement rates and non-restorative therapy. For example, several courts have ruled that the exclusion of applied behavior analysis therapy, a treatment for autism spectrum disorders, violates the MHPAEA.
Thanks to these new enforcement activities, many group health insurance plans no longer require general pre-certifications for mental health or addiction disorders, nor do they exclude coverage for treatments such as ABA therapy, drug treatment for opioid use disorder, nutritional counseling. related to psychological disorders or drug testing for substance use disorders.
Four action steps for plan sponsors
With increased regulatory scrutiny and litigation likely to continue, it is important that plan sponsors take steps to ensure their policies meet the requirements of the MHPAEA to avoid costly fines and costs associated with application and regulations. With few exceptions, almost all group health plans must offer parity. However, most sponsors will not be able to assess whether their plans are compliant based simply on third-party administrator contracts or certificates of coverage, as they lack the granular analysis necessary to demonstrate compliance. .
Instead, plan sponsors who want to proactively ensure that their group health insurance plans comply with the MHPAEA can take these steps.
- Request a demo
One of the easiest steps plan sponsors can take to demonstrate compliance with parity requirements is to request a demonstration of compliance from their TPA. While plan sponsors are legally responsible for ensuring compliance, demonstration can help a plan sponsor determine if their group health insurance plan meets the compliance requirement. The demonstration must demonstrate that the collective health plan, written and in operation, meets the parity requirements of the NQTL with respect to each of the components of care: hospital, in-network and out-of-network care; outpatient, in-network and out-of-network care, prescription drugs and emergency care. The DOL provides a self-compliance tool to guide users through their review approach, which can be broken down into four steps. Each of these steps is required for each NQTL. Here is a high-level example of how this review would be done with respect to a pre-authorization NQTL.
The first step in the analysis is to identify all services requiring prior authorization, including mental health and addiction treatment, as well as the components to which the NQTL applies (e.g. in-network, outpatient, etc.). The way the prior authorization requirement is implemented should also be documented, for example who makes the prior authorization decisions and their qualifications.
The second step identifies the factors taken into account in the design of the NQTL and their weighting. Examples of factors include overuse, recent cost increases, lack of effectiveness, or high levels of variation in processing. The third step goes further by identifying the sources used to define these factors, such as internal claims analysis or medical expert reviews.
The final step assesses whether the processes, strategies, and standards of evidence used in applying the NQTL are comparable and not more rigorously applied. both written and operational mental health and addiction benefits versus medical or surgical benefits. The DOL uses information such as approval rates, denial reasons, duration of approval, appeal rates, and review times, among others, to make this decision.
- Check audits
Plan sponsors can also ask their TPA if they have undergone an NQTL audit, either for the self-insured plans it serves or its fully insured products. Obtaining information about past or current audits can help sponsors understand where administrators are in the compliance process, as well as potential risks. Although TPAs may be reluctant to disclose this information, it is a good idea to ask.
- Protect yourself against fees and penalties in service contracts
Since plan sponsors are unable to ensure compliance with the MHPAEA themselves, sponsors of self-insured plans must ask their TPAs to declare that the plan will be operated in accordance with the MHPAEA and to obtain compensation for violations of this statement. While the group health plan would be responsible for paying wrongfully denied claims, litigation and audits can also be costly for sponsors due to attorneys’ fees (their own and plaintiffs), penalties and regulations that may result.
While it may be difficult to get these protections into the service agreement, it is worth raising these options with the TPA when discussing group health plan operations or reviewing compliance. .
- Perform a separate review
If the APT does not agree to perform and document its NQTL benchmarking, plan sponsors are legally required to conduct their own thorough compliance review. This type of review is expensive and difficult and will require the cooperation of the TPA. Although the TPA provides NQTL benchmarking, the responsibility for compliance rests with the plan sponsor.
Either way, proactive steps taken by plan sponsors to understand parity requirements and review their health plans prior to any audit or litigation can help promote full regulatory compliance with the MHPAEA, provide better care to their employees and limit the risk of costly litigation and enforcement action.
Patricia Cain is Chair of Neal Geber Eisenberg’s Employee Benefits and Executive Compensation Legal Practice Group. She can be contacted at [email protected].
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