By Sheryl Allenson, J.D.
As directed by section 13002 of the 21st Century Cures Act (Cures Act) HHS held a public meeting of stakeholders to prepare an Action Plan to improve state and federal coordination related to enforcement of mental health and substance abuse parity provisions in the Public Health Service Act (PHS Act), the Employee Retirement Income Security Act OF 1974 (ERISA), and the Internal Revenue Code ("Code"). The Action Plan includes a background on parity, which discusses the prevalence of mental health illness, substance abuse, and the coexistence of both together (CCIIO Action Plan, April 23, 2018).
Background. In 2008, Congress passed the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA) which requires employment-based group health plans and health insurance issuers that choose to provide mental health and substance abuse disorder benefits to cover them in parity with medical and surgical benefits. Later, the Affordable Care Act (ACA) (P.L. 111-148) extended this parity to non-grandfathered individual insurance plans and small group health plans. It also discusses enforcement actions and the promotion of compliance.
The report was divided along five categories: reporting and enforcement; disclosure requirements and increased transparency; consumer and compliance tools; state technical assistance; and, research. In all but one category, there is an update on recent actions completed since the Mental Health and Substance Abuse Disorder Parity Task Force Final Report was released in October 2016. Planned actions are also designated in the report.
Reporting and enforcement. For example, under reporting and enforcement, the Action Plan discusses the Department of Labor (DOL) Employee Benefits Security Administration (EBSA) investigations in FY 2017, noting that it had conducted 187 investigations related to MHPAEA. As a result, EBSA cited 92 violations. Also, the DOL issued a MHPAEA Enforcement Fact Sheet summarizing the DOL’s enforcement activities from fiscal year 2016. Relatedly, one of several planned actions includes releasing such reports on an annual basis.
Disclosure requirements and increased transparency. Recent actions related to disclosure requirements and increased transparency include the issuance by DOL, HHS, and Treasury Department of sub-regulatory guidance that clarifies the information that a provider who is acting as an authorized representative for a participant may request from an ERISA group health plan to assist in evaluating compliance with MHPAEA. DOL, HHS, and Treasury also issued Frequently Asked Questions on various issues.
Consumer and compliance tools. Under the umbrella of recent actions in the consumer and compliance tools category, on its own, and in conjunction with HHS, the DOL published a guide for consumers, issuers, state regulators and other stakeholders, which provides examples of plan provisions that could be red flags for improper action, and which should trigger an analysis of MHPAEA compliance. The DOL, along with Substance Abuse and Mental Health Services Administration ("SAMHSA") issued three joint publications to help consumers who want to understand how MHPSAEA affects their coverage. Also, HHS created a Parity Portal to help consumers find resources and what agency they should go to to solve coverage issues. As far as planned action, HHS intends to continue to update the Parity Portal.
State technical assistance. There was both recent action and planned action by SAMHSA to provide state technical assistance. SAMHSA, in conjunction with DOL and other HHS entities held two parity policy academies in 2017. Many states participated in both the commercial market policy academy, as well as the Medicaid policy academy. As a result of feedback from the academies, SAMHSA, in conjunction with the DOL is developing a "clear language" tool to help families and caregivers in the care of individuals, as well as a tool kit to provide information on the meaning of parity and how to implement and comply with federal parity laws and regulations.
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