Self-Insured Group Health Plan Sponsors: Action Steps to Mitigate Risk Under the Mental Health Parity and Addiction Equity Act | Verrill

For context: the MHPAEA applies to insured, self-insured, non-public sector and most governmental designs. The aim of this submit is compliance with the NQTL comparative analysis necessity for non-public sector, self-insured options.[2
On April 2, 2021, the Departments of Labor, Treasury, and Health and Human Services (the “Departments”) published FAQS About Mental Health and Substance Use Disorder Parity Implementation and the Consolidated Appropriations Act, 2021 Part 45 (“FAQs Part 45”), which provide guidance regarding the NQTL comparative analysis.

The CAA amended the MHPAEA to specifically require the Departments to request and review at least twenty NQTL comparative analyses per year, beginning in 2021. The Departments are also required to request and review the analyses if they receive complaints relating to noncompliance with the MHPAEA and may request the comparative analysis for any other reason they deem appropriate. The Department of Labor (“DOL”) has already made MHPAEA and, in particular, issues involving NQTLs, an enforcement priority. Litigation relating to mental health parity has been steadily increasing over the thirteen years since the statute’s initial passage, often with a focus on the application of NQTLs. In August, the DOL and the New York Attorney General reached a $15.6 million settlement in a first-of-its-kind case initiated directly against an administrative service provider for violations of MHPAEA (Walsh v. United Behavioral Health, E.D.N.Y. (8/11/21)). In light of the heightened enforcement activity, the growth of litigation in this area, and the complexity and length of the NQTL comparative analysis, we encourage plan sponsors to consider the following actions to mitigate risk:

• Review and familiarize yourself with the DOL’s Self Compliance Tool for the Mental Health Parity and Addiction Act (“Self Compliance Tool”). The Self Compliance Tool was most recently updated in October 2020 and is designed to give “the user a basic understanding of MHPAEA to assist in evaluating compliance with its requirements” and includes a lengthy section about NQTLs, including a process for performing a comparative analysis of NQTLs. FAQs Part 45, FAQ 2 explicitly states that “plans and issuers that have carefully applied the guidance in the Self-Compliance Tool should be in a strong position to comply with the [CAA’s] need to post comparative analyses upon ask for.”
• Make contact with your 3rd bash administrator (“TPA”) and pharmacy benefit manager (“PBM”) to ascertain the techniques they have taken to acquire and doc the NQTL examination. The process of determining and examining each individual NQTL under a approach is in depth and will require entry to internal scientific tips, policy statements, company reimbursement requirements, and promises information, among the numerous other issues. It is complicated to conceive how a approach sponsor could create an satisfactory investigation alone instead, we count on the bulk of approach sponsors to depend upon their TPA and PBM to prepare, manage, and update the vital documentation.
• Request a duplicate of the comparative assessment and supporting documentation from the TPA and PBM and critique it (either internally, or collectively with the plan’s advantage advisor or lawyer) to verify that it consists of a “robust discussion” of every “specific NQTL, plan terms, and procedures at issue” as effectively as, at a minimal, the other 8 components detailed in FAQs Section 45, FAQ 2.
• Guarantee that the supporting documentation features at least the pursuing, referenced in FAQs Section 45, FAQ 4 and even more detailed in the Self Compliance Device:
  • Promises processing policies and procedures
  • Samples of covered and denied MH/SUD and M/S statements
  • Pointers, inner protocols, and any other data describing the development and application of NQTLs and demonstrating that this kind of tips and protocols utilize no a lot more stringently to MH/SUD rewards than to M/S added benefits
  • Files relating to MHPAEA compliance with regard to provider suppliers
• If you do not have a TPA or PBM, operate on producing the assessment, utilizing the Self Compliance Device and the FAQs. Put together a system and timeline for figuring out and reviewing all NQTLs. Contemplate commencing by reviewing the system document and summary plan description and focusing on the four areas of present-day priority identified in FAQs Component 45, FAQ 8:
  • Prior authorization demands for in-network and out-of-network inpatient services
  • Concurrent review of in-network and out-of-community inpatient and outpatient providers
  • Standards for provider admission to take part in a community, such as reimbursement costs
  • Out-of-network reimbursement prices (approach methods for determining common, customary, and realistic rates)
• Look at acquiring internal controls to watch compliance with the MHPAEA (“MHPAEA Compliance Program”). A MHPAEA Compliance Software really should consist of at minimum the pursuing features:
  • Training of persons involved in program administration to assure that these kinds of people fully grasp the basic principles of MHPAEA compliance and the plan’s insurance policies and treatments for dealing with problems and requests for documentation
  • Recordkeeping necessities
  • Methods for detecting noncompliance, these as periodic audits of claims
  • A method for individuals to request prepare documentation, which include the comparative investigation[3]
  • A system for individuals to file issues about opportunity MHPAEA violations
  • A process to assure that prepare services suppliers deliver the documentation that the approach sponsor demands to assess MHPAEA compliance
  • A policy for frequent critique and revision of the NQTL comparative evaluation
• When negotiating service agreements with the plan’s TPA and PBM, carefully assessment and look at conditions relating to responsibility for getting ready and updating the NQTL comparative assessment and supporting documentation as vendors’ coverage and statements evaluate methods improve and include things like a method for timely provision of the evaluation upon ask for from the plan sponsor, contributors, or regulators to the extent provider agreements do not include things like this sort of terms, take into consideration including them.
• When conducting a Request for Proposal for the plan’s TPA and PBM, ask for and evaluation the comparative examination ahead of entering into a new engagement.

MHPAEA compliance is no compact activity, and the penalties for noncompliance are superior, together with penalties of $110 for every working day for failure to furnish documentation on ask for, IRS excise taxes of $100 per working day, probable litigation, and yearly general public disclosure by the Departments of the names of noncompliant plans and issuers. Appropriately, we urge strategy sponsors to take action to evaluation their existing and upcoming MHPAEA compliance.