Mental Health Parity: Uptick in Audits and Litigation (article)
The final Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) regulations have been in effect since July 1, 2014. Since that time, there appears to be an uptick in enforcement action by the law’s governing agencies, as well as litigation relating to compliance with these rules.
Of particular note is the increased occurrence of plan audits initiated by the Department of Labor’s Employee Benefit Security Administration (EBSA) and the Department of Health and Human Services (HHS). Evidence of enforcement activities pursued by these agencies is outlined in EBSA’s enforcement fact sheet and HHS’ enforcement report. It should be noted that while HHS has jurisdiction over non-ERISA plans, such as government plans, its enforcement guidance can still be useful for plans subject to ERISA.
With regard to litigation matters relating to the MHEAPA law, much of it seems to relate to whether treatment for medical and surgical services under a group plan are comparable to mental health services. In particular, coverage for autism treatment, as well as comparable treatment of residential services are ripe for litigation. Coverage for therapy programs such as wilderness programs to address mental health needs continue to be challenged.
Because these matters continue to be unsettled, plan sponsors should use caution with their plan provisions and coverages to ensure compliance with the MHPAEA. As a reminder, the mental health parity rules apply to group health plans sponsored by employers employing 50 or more employees. Comparable rules imposed by the Affordable Care Act apply to grandfathered and non-grandfathered individual policies, and small non-grandfathered insured plans subject to the essential health benefit provisions. Compliance assistance tools are available from both EBSA and HHS.