On October 23, 2020, the DOL announced updates to its self-compliance tool for evaluating compliance with the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The DOL proposed the changes to its MHPAEA self-compliance tool in June 2020 (see Legal Update, DOL Proposed Updates to MHPAEA Self-Compliance Tool Address Disclosures and Internal Compliance Process). As updated, the final self-compliance tool includes best practices, warning signs/red flags, a roadmap for developing internal plan compliance procedures, and a table for evaluating provider reimbursement rates in the MHPAEA context.

In general, the MHPAEA:

The DOL provides a self-compliance tool for use by plans in evaluating whether they are compliant with the MHPAEA. The DOL issued proposed updates for the self-compliance tool in June 2020 (see Legal Update, DOL Proposed Updates to MHPAEA Self-Compliance Tool Address Disclosures and Internal Compliance Process). Among other issues, the proposed self-compliance tool reflected extensive FAQ guidance (Part 39) issued in September 2019 regarding MHPAEA issues (see Legal Update, Final MHPAEA FAQs Include Claims Form for Requesting Plan Documents).

For more information on the MHPAEA, see Practice Notes:

(For more information, see Health Plan Notices and Disclosures Chart.)

In a section addressing the definition of "mental health benefits," the proposed self-compliance tool provided that plans that define a condition as a mental health condition must treat benefits for that condition as mental health benefits. For example, a plan that defines autism spectrum disorder (ASD) as a mental health condition would need to treat benefits for ASD as mental health benefits (see Practice Note, Mental Health Parity: Overview: Defining Mental Health Benefits: Autism Spectrum Disorder).

In the final self-compliance tool, the DOL added that aggregate annual or lifetime dollar limits or quantitative treatment limits (QTLs) imposed on ASD benefits also should be evaluated for MHPAEA compliance. Examples of these provisions include:

In a section of the self-compliance tool addressing the meaning of nonquantitative treatment limitations (NQTLs), the DOL clarified that substantially disparate results (for example, a plan network that includes far fewer MH/SUD providers than medical/surgical providers) are a red flag that a plan or insurer could be imposing noncompliant NQTLs.

Another change in the final self-compliance tool addressed the six classifications of benefits and prescription drugs (see Practice Note, Mental Health Parity: Overview: Six Classifications of Benefits). The change involved a plan that generally excluded all benefits for a particular mental health condition or substance use disorder, but still included prescription drugs for treatment of the condition or disorder on its formulary. The DOL previously concluded that such a plan covered MH/SUD benefits in only one classification (that is, prescription drugs), but would need to provide MH/SUD benefits for the other five classifications for which it also provided medical/surgical benefits.

The DOL clarified this rule in the situation where a prescription drug included on a plan's formulary:

In this situation, inclusion of the drug on the formulary would not by itself override the plan's general exclusion for a particular MH/SUD unless the plan covered prescription drugs specifically to treat that condition.

The proposed self-compliance tool also addressed how plans may establish internal MHPAEA compliance procedures (see Practice Note, Mental Health Parity: Overview: Implementing Internal Procedures for MHPAEA Compliance). In response to comments, the final tool adopted the proposed internal compliance procedures but added that:

The proposed self-compliance tool addressed health provider reimbursement rate issues—including a new section (Appendix II) with Medicare reimbursement rates for comparison purposes (see Practice Note, Mental Health Parity: Overview: Reimbursement Rates). According to DOL, comparing a plan or insurer's average reimbursement rates for both medical/surgical and MH/SUD providers with an external benchmark of reimbursement rates (for example, Medicare) may help determine whether the plan's or insurer's method for calculating these rates requires review for MHPAEA compliance.

Appendix II consists of a table of various health provider specialists and related Current Procedural Terminology (CPT) codes—with space to state a plan's average reimbursement rate for a locality, the Medicare rate, and the plan's rate as a percentage of Medicare.

In response to comments requesting more information, the final self-compliance tool explains how to use the information in Appendix II. Specifically, if the reimbursement rate for MH/SUD providers is lower than the reimbursement rate for medical/surgical providers or the Medicare benchmark (or other external benchmark), the plan or insurer should review its methodology to ensure that the processes, strategies, evidentiary standards, and other factors used in determining reimbursement rates for MH/SUD benefits are comparable to (and no more stringently applied than) those used in determining reimbursement rates for medical/surgical benefits. However, DOL also cautioned that the Appendix II framework is not:

Relatedly, the DOL added an additional example of a red flag plan design feature (specifically, consideration of different sets of factors to set reimbursement rates) that could merit additional agency review. Under such a provision, for example, a plan or insurer might consider:

The proposed self-compliance tool included updated examples of noncompliance with the MHPAEA (see Practice Note, Mental Health Parity: Overview: Updated Examples and Warning Signs of Noncompliance). In the final self-compliance tool, the DOL removed denial of all drug screening tests for individuals with SUD from the list of warning signs.

Section H of the DOL's final self-compliance tool—regarding establishing an internal MHPAEA compliance plan—offers health plans and insurers a potentially useful roadmap for approaching MHPAEA compliance, which has become the topic of extensive litigation in recent years. Importantly, Section H also includes a list of MHPAEA-related plan materials that a DOL investigator could request in auditing a plan's MHPAEA compliance efforts. Among other topics, many of the changes in the now-final self-compliance tool focus on provider reimbursement rates—suggesting that these rates are a key warning sign/red flag that the DOL looks for in the audit context.