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to a request for comparative analyses by producing a large volume of documents “without a clear explanation of how and why each document is relevant to the comparative analysis.” In a Joint Report submitted to Congress in March of 2022, the Departments reviewed the common pitfalls in plans such as failure to demonstrate compliance of NQTLs, failure to specify which benefits in covered classifications were affected by NQTLs, and submitting analyses that were simply nonresponsive to the Departments’ request. The Joint Task Force found that no plan was able to produce comparative analyses and satisfy the Departments by the initial deadlines. In their Joint Report, the Departments noted that mental health is a vital component of overall health and well-being. It also noted that COVID-19 pandemic has brought into focus the importance of attending to mental health and substance use disorder health, and that the pandemic “exacerbated existing barriers to and health disparities in accessing treatment.” The Departments noted that given the rapidly escalating challenges mental health and substance use disorder conditions have posed during COVID-19, “greater enforcement of MHPAEA is essential” to integrating treatment of these benefits with those available for physical health. The report states “this new enforcement authority is the cornerstone of the Departments’ heightened enforcement efforts … These efforts have already born results, and the Departments will continue to devote greater resources to enforcement so as to take full advantage of these new and existing tools that Congress has provided to the Departments ...” The 2022 MHPAEA Report to Congress by the Departments also provided information regarding notable enforcement results. For example, the DOL/EBSA found a group health plan’s financial requirements were not compliant with MHPAEA in the classification of outpatient/in network services in that the participants seeking mental health/ substance use disorder benefits were being charged higher co-pays when compared to medical surgical benefits in the same classification. As a result, plan fiduciaries were required to re-adjudicate claims over a four-year period, which concluded that the benefits were not in parity compliance. This resulted in required reimbursements of overpaid cost-sharing payments to 1,945 affected participants in the total reimbursement amount of $82,065.

Conclusion

It is clear the Departments have focused their attention on parity issues, as well as in raising awareness and additional mechanisms for enforcement of the MHPAEA requirements. Plan sponsors should prioritize compliance in plan terms, as well as in understanding the appropriate steps to conduct the comparative analysis required, and in actually preparing the analysis which will be best accomplished by working with insurance carriers, third-party administrators, and legal counsel to ensure compliance as well as addressing areas of noncompliance. Plan sponsors (i.e., employers) should contact their insurance carriers (or third-party administrators) and inquire as to what specific steps these agencies are taking to prepare for compliance with Section 203 of the CAA, and whether the plan is in full compliance with the MHPAEA.

Mary C. Moffatt, Member

Wimberly Lawson Wright Daves & Jones PLLC Knoxville, Tennessee office mmoffatt@wimberlylawson.com

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