IMPROVING HEALTH COVERAGE FOR MENTAL HEALTH AND SUBSTANCE USE DISORDER PATIENTS Including Compliance with the Federal Mental Health and Substance Use Disorder Parity Provisions REPORT TO CONGRESS Secretary Thomas E. Perez U.S. Department of Labor January 2016 Table of Contents I. EXECUTIVE SUMMARY ............................................................................................................................... 1 Enforcement of MHPAEA ............................................................................................................................ 1 Regulations and Guidance .......................................................................................................................... 2 Outreach and Publications ......................................................................................................................... 2 Looking Ahead ........................................................................................................................................... 3 II. INTRODUCTION ......................................................................................................................................... 4 III. REGULATORY ACTIONS: FUTHERING PARTICIPANTS’ AND BENEFICIARIES’ RIGHTS ..................................... 9 A. The Departments Address Nonquantitative Treatment Limitations ........................................................ 9 B. The Department Addresses Scope of Services ....................................................................................... 10 C. The Department Ensures Full Disclosure ............................................................................................... 10 D. Other Efforts Reflecting Ongoing Support of Access to Quality Mental Health and Substance Use Disorder Benefits ................................................................................................................................ 12 IV. ENFORCEMENT EFFORTS .......................................................................................................................... 14 V. CUSTOMER SERVICE, OUTREACH AND EDUCATION .................................................................................. 19 VI. CONCLUSION ........................................................................................................................................... 23 VII. APPENDICES ............................................................................................................................................. 23 APPENDIX A. MHPAEA Final Rules …………………………………………………………………………………………………………..29 APPENDIX B. MHPAEA Enforcement Fact Sheet …......………………………………………………………………………………89 APPENDIX C. MHPAEA Compliance Sudy …………………………………………………………………………………………………93 APPENDIX D. NQTL/SOS Study ……………………………………………………………………………………………………………...247 APPENDIX E. Summary of Stakeholder Calls, Compiled by Truven Health ………………………………..……....……296 I. IMPROVING COVERAGE FOR MENTAL HEALTH AND SUBSTANCE USE DISORDER PATIENTS EXECUTIVE SUMMARY Mental health and substance use disorder services are an essential and sometimes lifesaving component of health coverage. Since the passage of the Mental Health Parity and Addiction Equity Act (MHPAEA), the Departments of Labor, Treasury and Health and Human Services have enforced the law, assisted consumers, and continuously clarified the responsibility of plan sponsors and insurance companies providing mental health and substance use disorder coverage. Many challenges remain, but the Departments have made great strides in implementing the vision of MHPAEA. Through investigations of employment-based plans, regulations and guidance, and outreach, the Departments strive to ensure that coverage for mental health and substance use disorder treatment is provided comparably with that offered for other medical care. Enforcement of MHPAEA Since October 2010, the Department of Labor’s Employee Benefits Security Administration (EBSA) has conducted 1,515 investigations related to MHPAEA and cited 171 violations. In one case, EBSA helped a person whose plan imposed different copayment amounts and coverage levels on mental health benefits than on medical/surgical benefits. EBSA staff determined the plan was not in compliance with the law, and explained as much to plan officials. As a result, the plan was amended, claims were reprocessed, and $59,000 in previously denied benefits were paid. EBSA investigations are rooting out illegal practices such as preauthorization requirements that prevent mental health patients from receiving immediate, potentially life-saving, treatment. More than 100 Benefits Advisors located across the country provide expert-level assistance with MHPAEA and other benefits questions and complaints. These advisors are a direct link to the Department, and assist participants by seeking voluntary compliance from plans, both at an individual and plan-wide level. When necessary, informal complaints made to these advisors are referred to EBSA investigators for formal investigation. Large nationwide insurance companies are paying attention to EBSA enforcement actions and making changes when problems are found in individual plans. EBSA is authorized to investigate employment-based group health plans and sue for equitable relief, but, as with most other Federal laws related to health insurance, the agency does not have the authority to directly take action against health insurance issuers. Instead the law provides for State government enforcement with respect to issuers with HHS as a fallback.1 EBSA nonetheless has been able to work collaboratively with issuers to ensure widespread corrections by issuers and third-party administrators for thousands of plans. In addition, EBSA has worked closely with state insurance departments to ensure that the law’s requirements are understood. Granting the Department of Labor the statutory authority to take action against insurance providers would have been a more direct means of enforcing the law at the federal level. But the Department’s actions at the plan level, and its work with state insurance commissioners are having a positive impact. 1 In addition, the IRS is authorized to impose excise taxes with respect to group health plans for MHPAEA violations and EBSA can make referrals to IRS. Individuals also maintain a private right of action through ERISA against plans and issuers for MHPAEA violations as well. Page | 1 Regulations and Guidance Regulations are the cornerstone of the Departments’ efforts to implement MHPAEA. Since the law was passed, the Departments have published final regulations implementing mental health and substance use disorder parity. These rules were crafted through a public notice and comment process and reflect true collaboration among stakeholders. The Departments also issue subregulatory guidance in response to questions raised by plan sponsors, insurance providers and advocates. Such guidance allows the Departments to respond swiftly to developing issues. Many of the Departments' FAQs were eventually incorporated into regulation during the rulemaking process, and subsequent ones have provided additional clarifications regarding the Departments' interpretation of the law. The issuance of FAQs and other sub-regulatory guidance is an ongoing and ever- evolving effort that is done in concert with stakeholders and that has positive outcomes for covered individuals with mental health and substance use disorders. Outreach and Publications Regulations set the stage for proper implementation of a law, and enforcement ensures that bad actors are rooted out. But for every plan, plan sponsor or provider intentionally skirting the law, there are a great many more that simply need accurate, timely information to properly implement mental health and substance use disorder parity. Between 2010 and 2015, EBSA staff made parity presentations at over 30 Health Benefit Education Campaign (HBEC) seminars across the country. In 2015 alone, agency staff conducted HBEC seminars in Austin, Texas; Hartford, Connecticut; Indianapolis, Indiana; Anchorage, Alaska; Omaha, Nebraska; West Columbia, South Carolina and Philadelphia, Pennsylvania. EBSA has also conducted a number of well-received consumer webcasts on MHPAEA, some of which are now available online. EBSA has also participated in a number of stakeholder calls soliciting feedback on the implementation of the law, allowing the agency to further refine its enforcement actions, educational campaigns and legal interpretations. Outreach events are a critical component of ensuring compliance with healthcare laws and regulations and lead to plans making corrections voluntarily. In this sense, investing in outreach and education is an efficient and effective means of implementing the law by ensuring education and understanding of its requirements among those plans and sponsors who may otherwise unintentionally run afoul of it. Disseminating timely information can put a stop to problems before they start, and mean that fewer consumers will face coverage problems when seeking mental health and substance use care. Equally important to these efforts are the many publications maintained by EBSA and aimed at plan sponsors and healthcare consumers. The agency has developed a total of nine consumer publications, online tools, and compliance assistance materials designed to promote better understanding of the MHPAEA requirements. The agency fulfilled 56,105 requests for these publications during 2015. Page | 2 Looking Ahead Those seeking mental