On April 23, 2018, the DOL issued proposed FAQ guidance addressing compliance issues under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) (see Practice Notes, Mental Health Parity: Overview and Mental Health Parity: NQTLs and Other Issues). The FAQs were jointly prepared by the DOL and the Departments of Health and Human Services (HHS) and Treasury (Departments).

The FAQs are part of a collection of resources regarding MHPAEA compliance, which includes:

The Departments also made available a revised draft form for use by participants and their authorized representatives in requesting:

In general, the MHPAEA:

Under the disclosure requirements, plans and insurers must provide:

(See Legal Updates, DOL FAQs Address MHPAEA Compliance, Final Mental Health Parity Rules Clarify Plan Disclosure Requirements, and Wellness, Obesity, Lactation Counseling, Mental Health, and More at Issue in Latest DOL FAQs.)

The disclosure rules include a requirement that plans governed by the Employee Retirement Income Security Act of 1974 (ERISA) provide participants, on request, information about the processes, strategies, evidentiary standards, and other factors used to apply an NQTL regarding medical/surgical benefits and MH/SUD benefits under a plan.

In FAQs issued in October 2016, the Departments requested comments on whether they should issue model forms to assist participants and their representatives in requesting documents regarding NQTLs (see Legal Update, Parity Portal, Opioids, and Fail-First Requirements Addressed in Latest Guidance). The DOL made available an initial draft version of such a form in June 2017 (see Legal Update, Mental Health Parity Form Would Assist Participants in Requesting Documents).

The April 2018 proposed FAQs provide additional guidance regarding NQTLs and disclosure requirements under the MHPAEA, as amended by the Affordable Care Act (ACA) and the Cures Act. The Cures Act required the Departments to provide examples of:

The FAQs address whether specified plan designs are NQTLs and, if so, whether the plan designs are consistent with the MHPAEA.

In one FAQ, for example, the DOL addressed a plan that, by its written terms, purported to exclude experimental or investigative treatment for both mental use/substance use disorder (MH/SUD) benefits and medical/surgical benefits using the same standards. In practice, however, the plan enforced this exclusion more stringently as to MH/SUD benefits. Regarding medical/surgical benefits, the plan approved a treatment if it was supported by one or more professionally recognized treatment guidelines and two or more controlled randomized trials. However, the plan denied all claims for a therapy used to treat Autism Spectrum Disorder (which the plan classified as a mental health condition), reasoning that the treatment was experimental or investigative. The plan reached this conclusion even though more than one professionally recognized treatment guideline and more than two controlled randomized trials supported use of the therapy to treat certain children with Autism Spectrum Disorder. The DOL therefore concluded in its FAQ that the plan's exclusion of the therapy as experimental did not comply with the MHPAEA.

In another FAQ, the DOL addressed a plan's use of pharmacy and therapeutics (P&T) committees (instead of nationally recognized treatment guidelines) to determine how to:

The DOL indicated that although using P&T committees does not violate the MHPAEA per se, the plan's procedures in this regard must comply with the MHPAEA's NQTL standards in practice. For example, this could require review of situations when a plan does (and does not) deviate from nationally recognized treatment standards based on a P&T committee's report.

Other FAQs in the DOL's April 2018 guidance address mental health parity topics such as:

The FAQs also include questions involving ERISA disclosure requirements for MH/SUD benefits. In one question, the DOL concluded that an ERISA plan that uses a provider network and furnishes a provider directory with the plan's summary plan description must make reasonable efforts to ensure that the directory's list of providers is accurate, current, and complete (see Summary Plan Description (SPD) Toolkit). Plans and insurers that use provider networks may also provide a hyperlink or URL address in enrollment and plan summary materials for a provider directory where information related to MH/SUD providers can be found.

The DOL also issued an updated draft MHPAEA disclosure template (Form to Request Documentation From an Employer-Sponsored Health Plan or an Insurer Concerning Treatment Limitations). Individuals may use the form to request MHPAEA-related information from plans and insurers. An earlier version of this draft form was issued in June 2017 (see Legal Update, Mental Health Parity Form Would Assist Participants in Requesting Documents). Like its June 2017 predecessor, the updated disclosure form:

The form asks users to specify one or more reasons why a claim for MH/SUD benefits was denied, for example that:

The form also asks the plan to:

The April 2018 version of the DOL's form includes expanded introductory language and additional examples. For instance, the form now includes several examples of factors used in developing treatment limits, such as recent medical cost increases or excessive utilization.

The DOL's collection of resources also includes an updated MHPAEA self-compliance tool for use by plans in evaluating whether they are compliant with the MHPAEA. According to the DOL, the tool is the same audit checklist used by Employee Benefits Security Administration (EBSA) investigators in the enforcement context. Reflecting a Cures Act requirement to provide an MHPAEA compliance program document, the DOL's self-compliance tool includes:

The DOL has indicated that it plans to update its self-compliance tool every other year to provide guidance on the MHPAEA's requirements, as appropriate.

As this collection of resources and guidance would suggest (and the DOL's 2018 Report to Congress states expressly), MHPAEA enforcement is one of the DOL's primary enforcement priorities. This emphasis is also reflected in the DOL's MHPAEA-related enforcement statistics for 2017, which indicate that of the DOL investigations of plans subject to the MHPAEA, nearly half of the plans were cited for MHPAEA noncompliance. As a result, plans may wish to evaluate their MHPAEA compliance using the DOL's self-compliance tool, which includes a framework for conducting this evaluation along with expanded examples and compliance tips. In addition to the requirements under the federal MHPAEA, plans should be aware that some states have enacted mental health parity laws that supplement the MHPAEA (see Legal Update, In Disability Benefits Litigation, ERISA Does Not Preempt Montana's Mental Health Parity Law).