Dive Brief:

• Health plans are "failing to deliver parity" for mental health and substance-use disorder benefits, a Jan. 25 report from the U.S. Department of Labor concluded.
• That finding is particularly troubling amid a pandemic that is having a documented negative impact on individuals' mental health and driving a rise in substance use, Secretary of Labor Marty Walsh said in a prepared statement. "As a person in recovery, I know firsthand how important access to mental health and substance-use disorder treatment is," he added.
• To address its findings, DOL said it will take "unprecedented" steps to enforce the law that requires such parity.

Dive Insight:

The Mental Health Parity and Addiction Equity Act of 2008 requires that health plans treat mental health and substance-use disorder benefits — if they offer them — the same as other benefits when it comes to terms such as co-pays and prior authorization requirements. "For example, a health insurance issuer [covering] nutritional counseling for medical conditions like diabetes, but not for mental health conditions such as anorexia nervosa, bulimia nervosa and binge-eating disorder" fails to create parity, according to DOL.

The agency in its report said it has identified shortcomings in many plans and worked with them to make changes, but that more enforcement is needed. In addition to making use of the enforcement tools already available to the Employee Benefits Security Administration, the subagency tasked with enforcement, DOL has called on Congress to grant it authority to fine those in violation of the law — a move the agency said would "incentivize compliance."

DOL also asked Congress to allow it to pursue "all appropriate actors" when it finds a violation. "In EBSA’s experience, plan sponsors often rely on the issuer of fully-insured plans (or the [third-party administrator], in the case of self-insured plans) to administer its [mental health and substance-use disorder] benefits, including by designing and implementing the limitations and coverage terms that are the subject of parity compliance," the report said, and having the authority to pursue all entities involved in plan design and administration would "greatly strengthen" the agency’s efforts.

DOL's request to hold additional parties responsible is likely aimed at insurance companies, Craig Day, principal at Jackson Lewis P.C., told HR Dive in an interview. The agency could cover more ground that way, as opposed to auditing employers individually.

And the agency's requests aside, this recent focus on MHPAEA enforcement likely doesn't present a large risk to most employers, especially those with fully insured plans, Day said. It's unlikely such employers would be held responsible for problems with their health insurance plans, he said.

There's slightly more risk for self-insured employers, he continued, but penalties generally focus on correcting violations. "You could be swept up in a DOL investigation" and face some headaches in that respect, he said, but the remedy would likely be limited to reprocessing the claims in question.

For HR professionals evaluating health plan bids, it could be worthwhile to ask whether each plan complies with the MHPAEA, Day said. Employers also could ask insurance companies to indemnify them against such claims, "but the truth is most employers don't have any bargaining power with insurance companies," he said. "But if you're going out and doing an RFP, a request for proposal, you might ask the question. It might be worthwhile."