The Paul Wellstone and Pete Domenici Mental Health Parity and Addition Equity Act of 2008 (“MHPAEA”) prohibits health insurers from imposing more restrictive treatment limitations on mental health and substance abuse coverage than they impose on coverage for medical/surgical services. In other words, health insurers cannot impose limits on the frequency of treatment or the scope or duration of the treatment that are not imposed on medical/surgical benefits. Health insurers also cannot require the payment of higher copayments or impose stricter preauthorization or medical necessity review requirements on mental health and substance abuse services than are imposed on medical/surgical services. Congress subsequently amended the MHPAEA to give the Departments of Labor, Health and Human Services, and the Treasury (“the Departments”) additional enforcement powers. In its 2022 MAPAEA Report to Congress, the Departments found that health insurance companies have largely failed to comply with the MHPAEA’s parity requirements.

In a statement announcing the issuance of the Report, Secretary of Labor Marty Walsh stated: “The report’s findings clearly indicate that health plans and insurance companies are falling short of providing parity in mental health and substance-use disorder benefits, at a time when those benefits are needed like never before. The pandemic is having a negative impact on the mental health of people in the U.S. and driving a rise in substance abuse.” Similarly, Secretary of Health and Human Services Xavier Becerra stated: “Access to mental and behavioral health support is critical as the COVID-19 pandemic continues to impact so many lives across the country. Unfortunately, as today’s report shows, health plans and insurance companies are falling short of providing access that many working families need.”

The Report highlighted the Biden/Harris Administration’s emphasis on greater MHPAEA enforcement and detailed its efforts to ensure compliance with the law. The Report stated that the Department of Labor’s Employee Benefits Security Administration (“EBSA”) had issued 156 letters to plans requesting comparative analysis of mental health/substance abuse benefits with medical/surgical benefits and that the Centers for Medicare & Medicaid Services had issued 21 such letters between May and November 2021. The Report stated that “none of the comparative analyses reviewed to date have contained sufficient information….” After investigation, the EBSA issued 80 insufficiency letters covering more than 170 treatment limitations and 30 initial determination letters finding 48 treatment limitations lacked parity with medical/surgical benefits. CMS has issued 19 insufficiency letters and 15 initial determination letters finding that 16 treatment limitations lacked parity with medical/surgical benefits.

Some of the examples of improper treatment limitations included:

  • Exclusion of applied behavior analysis (“ABA”) therapy to treat autism spectrum disorder
  • Exclusion of coverage for nutritional counseling for mental health conditions such as anorexia nervosa and binge-eating disorder while covering it for medical conditions such as diabetes
  • Requiring pre-certification of all mental health/substance abuse outpatient services, but only imposing such a requirement on a select list of medical/surgical outpatient services
  • Requiring evident progress for continued stay for mental health/substance abuse disorders with no comparable requirement for medical/surgical services

The Report concluded with several recommendations to Congress, including recommendations that Congress amend ERISA to provide authority to EBSA to pursue parity violations of entities that provide administrative services to group health plans, that Congress amend the MHPAEA to grant authority to the Department of Labor to assess monetary penalties for parity violations, and that Congress consider ways to permanently expand access to telehealth and remote care services.

2022 MAPAEA Report to Congress is linked here.

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