By Matt Pavich, J.D.
Since the start of 2016, five non-Federal governmental plans have been reviewed by CMS to ensure compliance with the Mental Health Parity and Addiction Equity Act (MPHAEA), according to an enforcement report released this week by HHS. The report also details CMS’ efforts to ensure compliance in four states that either elected not to enforce the MPHAEA, or have failed to substantially enforce it (CCIIO Report, December 12, 2017).
Background. The MHPAEA generally prohibits group health plans and health insurance issuers that provide mental health or substance use disorder (MH/SUD) benefits from imposing less favorable benefit limitations on those benefits than on medical/surgical benefits. When MHPAEA complaints are filed, CMS is tasked with investigating whether non-federal governmental plans that have not opted out of MHPAEA are in compliance. It has the authority to initiate a market conduct examination to determine whether a non-federal governmental plan has failed to comply. The report detailed enforcement actions since 2016. Section 2001 of the Affordable Care Act (ACA) (P.L. 111-148) significantly extends the reach of the MHPAEA’s requirements. All small group and individual market plans created after March 23, 2010, must comply with federal parity requirements.
Enforcement activities. The report states that CMS is currently enforcing MHPAEA with respect to health insurance issuers in Missouri, Oklahoma, Texas, and Wyoming; CMS assumes primary MPHAEA enforcement authority in states that have elected not to enforce, or that have failed to substantially enforce, the MHPAEA. In those four states, CMS has reviewed policy forms for issuers to determine compliance before those issuers can offer their products for sale. These policy reviews have identified numerous parity issues and the issuers must correct those issues before individuals and groups can enroll. In addition, CMS has also created a market conduct examination process that audits health insurance issuers in states where CMS is directly enforcing federal reforms. CMS also conducts market conduct examinations of issuers in states that have a collaborative enforcement agreement with CM. When a state identifies a possible violation, but cannot get a voluntary compliance from the issuer, it refers the natter to CMS. Since the start of 2016, CMS has finalized one market conduct examination.
CMS also offers technical assistance to states, issuers, and plans. It has provided further clarification on MHPAEA requirements through the Substance Abuse and Mental Health Services Administration’s Commercial Parity Policy Academy, conducts stakeholder listening sessions, and has published numerous guidance documents. CMS co-published (along with the Departments of Treasury and Labor) the Mental Health and Substance Use Disorder Parity Compliance Assistance Materials Index, a compilation of sub-regulatory guidance and compliance assistance materials helps plans, issuers, and third party administrators to ensure MHPAEA compliance.
Examinations. In 2016, following a market-conduct examination of all mental health/substance use disorder (MH/SUD) benefits in all classifications, CMS discovered that an issuer failed to cover methadone for opioid addiction, even though methadone is covered for pain management. In that case, the issuer failed to show that its process for developing the methadone treatment exclusion for opioid addiction were comparable to than those used for medical/surgical conditions, nor that they were applied more stringently. As a result, the issuer created medical-necessity criteria to replace the methadone-maintenance treatment exclusion in its 2017 plans, mirroring Federal guidelines for opioid treatment programs. The updated medical-necessity criteria was posted to the issuer’s website with an effective date of January 1, 2017.
CMS also found that a non-federal governmental plan required certification requests after 15 outpatient MH/SUD visits, even though outpatient medical/surgical visits required certification after 20 visits. The plan increased the visit threshold for the certification request requirement to 20 for outpatient MH/SUD services.
In another action, a plan denied claims for applied behavior analysis (ABA) therapy for autism treatment, because the covered dependent was diagnosed after the age specified by the plan. CMS noted that it was unclear if and how the plan used a similar process to impose an age limitation for medical/surgical benefits in the same classification. CMS asked the plan to submit information about the process it used to impose age limits to out-patient in-network medical/surgical benefits and MH/SUD benefits. Even though CMS found that the limitation in this case did not violate MHPAEA, the plan approved the individual’s ABA therapy for the treatment of autism.
In a fourth action, CMS issues a corrective action plan clarifying that a consecutive day limit applied across the board. The plan in question imposed a 120-consecutive-day limit on MH/SUD inpatient services and required concurrent review of certain inpatient mental health services. The plan’s administrator confirmed that the 120-consecutive-day limit applied to both medical/surgical and MH/SUD inpatient services.
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