Regulators are now better armed to cite and fine health plans that are not complying with the Mental Health Parity and Addiction Equity Act (MHPAEA) of 2008. A recent report to Congress highlights the enforcement work to date and illustrates the extent to which many plans are noncompliant with the law. The result is that the health plans’ members are paying for benefits for conditions requiring mental and substance use disorder treatments they need, but they are not available or they are more difficult to obtain than other covered medical treatments.

The Departments of Labor, Health and Human Services, and Treasury report as a requirement of the Consolidated Appropriations Act (CAA), which was enacted in December 2020 and included the Strengthening Behavioral Health Parity Act. The CAA amended the MHPAEA to require health plans to perform analyses of their treatment limits other than visit limitations or dollar caps, which are health plans’ nonnumerical treatment limitations, such as preapproval. Another area for review should include network adequacy and access measurements.

Nonnumerical treatment limitations are difficult to identify, and make it more challenging for regulators to determine if there is compliance with the parity law. The CAA makes it a requirement to report these nonnumerical limitations. As of January 2022, none of the analyses performed by health plans contained sufficient information for the agencies to determine compliance. As a result, insufficiency letters to plans have been issued requesting additional information. The result based on health plan reports is that parity violations have been identified. Many health plans are out of parity with medical/surgical benefits. The work has just begun, and health plans will need to give this their attention or be faced with fines, citations and corrective actions.

The enforcement will have positive effects leading to expanded access. The real challenge for health plans will be building their networks to have sufficient practitioners to provide the care so many need. The pandemic has arguably increased the demand for mental health and substance abuse services. The ability to render services through electronic and remote communication sources will be a big help to getting the care delivered.

We intend to follow this topic and report updated findings in a future post.

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