Health Plans' Prior Authorization Rules Are Under Scrutiny By The DOL For Mental Health Parity Compliance – See The DOL's Top Five Non-Quantitative – Mondaq News Alerts

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Health Plans’ Prior Authorization Rules Are Under Scrutiny By The DOL For Mental Health Parity Compliance – See The DOL’s Top Five Non-Quantitative “Red Flags” For Health Plans

07 March 2022

Foley & Lardner

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On January 25, 2022, the U.S. Departments of Labor
(“DOL”), Treasury, and Health and Human Services (the
“Departments”) provided a report (the “Report”)
on Mental Health Parity and Addiction Equity Act
(“MHPAEA”) compliance to Congress. As background, the
Consolidated Appropriations Act, 2021 (the “CAA”) imposed
new obligations on health plans and health insurance issuers to
document how they apply non-quantitative treatment limitations
(“NQTLs”) to mental health and substance use disorder
(“MH/SUD”) services in parity with how they apply such
NQTLs to medical/surgical services. The Report focuses on how plans
and issuers should comply with this new comparative analysis
requirement. Read more about the details of the CAA’s NQTL
comparative analysis requirements in our prior article, available here. A copy of the Report is available here.

The DOL issued 156 letters to health plans and health insurance
issuers requesting comparative analyses for 216 unique NQTLs. The
DOL indicated that none of the comparative analyses initially
submitted in response contained sufficient information, for reasons
such as failure to describe the NQTL in sufficient detail and
failure to demonstrate parity of NQTLs as written and in operation.
After providing the plans and issuers a chance to supplement their
initial submissions, the DOL issued letters to 30 plans and issuers
noting an initial determination of non-compliance for 48 NQTLs.
Here are the five most common NQTLs that the DOL found
non-compliant:

Limitation or exclusion of applied behavioral analysis therapy
or other services to treat autism spectrum disorder;

Billing requirements – licensed MH/SUD providers can bill
the plan only through specific types of other providers;

Limitation or exclusion of medication-assisted treatment for
opioid use disorder;

Preauthorization or precertification; and

Limitation or exclusion of nutritional counseling for MH/SUD
conditions.

1. ABA for Treatment of Autism

Exclusion of applied behavioral analysis therapy
(“ABA”) and similar services for the treatment of autism
have commonly been the subject of lawsuits against plans and
issuers, alleging violations of ERISA fiduciary duties and the
MHPAEA. In addition to limitations or exclusions on ABA being the
most common NQTL that the DOL found to be non-compliant, the DOL
also expressly called out the removal of ABA therapy exclusions as
an example of an area in which MHPAEA audits and corrective action
plans have had a major impact on protecting plan participants and
meeting the purposes for which the MHPAEA was enacted. Plan
sponsors that currently have exclusions or limitations in their
plans on ABA and similar services for the treatment of autism
should carefully consider the exclusion or limitation to consider
whether it is in compliance with the MHPAEA.

2. Billing Requirements for MH/SUD Providers

Some plans require MH/SUD providers to bill the plan through
other providers or certain channels in order for the MH/SUD to
receive full (or any) reimbursement for services. If this
requirement is not imposed on medical or surgical providers for
equivalent non-MH/SUD services, these restrictions on MH/SUD
providers likely trigger MHPAEA compliance issues. Plan sponsors
should review any disparate billing practices for different
provider types carefully to ensure that they do not run afoul of
MHPAEA requirements.

3. Medication for Opioid Use Disorders

The third most common NQTL found to be non-compliant by the DOL
is the exclusion or limitation of coverage of medication-assisted
treatment for opioid use disorder. As with ABA, the DOL expressly
called out this NQTL as an example of an area in which MHPAEA
audits and corrective action plans have had a major impact. Given
the opioid epidemic facing the United States, SUD treatments are an
enforcement priority. Plan sponsors should carefully consider any
limitations or exclusions on the coverage of prescription
medications for opioid use disorder, alone or in combination with
other services, to ensure they are in compliance with the
MHPAEA.

4. Preauthorization

Preauthorization (aka prior authorization or precertification)
is an NQTL that nearly every health plan applies. The Departments
have previously indicated that preauthorization NQTLs are an area
of enforcement priority (see Q&A 8 in FAQs About Mental Health and Substance Use
Disorder Parity Implementation and the Consolidated Appropriations
Act, 2021 Part 45). Issues arise regarding preauthorization
when the requirements are not applied equally to MH/SUD services
and medical/surgical services. For example, if a plan requires
prior authorization for treatment at a residential treatment
facility, but does not require prior authorization for treatment at
a skilled nursing facility, preauthorization is likely not being
applied in parity. The DOL specifically called out removal of
blanket preauthorization requirements on all MH/SUD benefits as an
example of an area in which MHPAEA audits and corrective action
plans have had a major impact. Plan sponsors should carefully
review their preauthorization requirements to ensure that they are
compliant with the MHPAEA and do not apply more stringently to
MH/SUD benefits than medical/surgical benefits.

5. Nutritional Counseling for MH/SUD Conditions

The fifth most common NQTL found to be non-compliant by the DOL
is the exclusion or limitation of coverage for nutritional
counseling to treat MH/SUD conditions. If a plan covers nutritional
counseling for medical/surgical conditions like diabetes, but not
for MH/SUD conditions like anorexia nervosa or bulimia nervosa, the
plan is likely not in compliance with the MHPAEA. This is yet
another area the DOL called out as an example of how MHPAEA audits
and corrective action plans have had a major impact, with one
corrective action plan with an issuer affecting over 1.2 million
participants. Plan sponsors should review any limitations or
exclusions on the coverage of nutritional counseling to ensure they
are applied in parity to both medical/surgical and MH/SUD
conditions.

Summary

The Report’s in-depth discussion of plans’ and
issuers’ compliance with NQTL comparative analysis requirements
provides many helpful insights to plan sponsors as they conduct and
revise their own NQTL analyses. Plan sponsors should consider
giving additional focus to the five areas of common non-compliance
discussed here, as the DOL will likely continue to focus on these
areas in future NQTL comparative analysis requests.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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