The Departments of Labor, Well being and Human Companies (“HHS”), and the Treasury (the “Tri-agencies”) launched their 2022 annual report back to Congress on the Psychological Well being Parity and Dependancy Fairness Act (“MHPAEA”) on Tuesday, January 25. The Worker Advantages Safety Administration (“EBSA”) launched an FY 2021 MHPAEA Enforcement Truth Sheet alongside the annual report. Collectively, the Tri-agencies’ report and EBSA reality sheet present extra, necessary info for group well being plans and medical insurance issuers trying to adjust to the 2021 Consolidated Appropriations Act’s (“CAA”) non-quantitative therapy limitation (“NQTL”) comparative evaluation necessities. However plans and issuers want extra company steerage.
A lot of the report is devoted to breaking down EBSA and HHS enforcement below the CAA throughout 2021, detailing the variety of comparative evaluation requests issued, “insufficiency” letters issued in response to the comparative analyses obtained, and preliminary determinations of non-compliant NQTLs. The Tri-agencies have been crucial of general compliance—certainly, they discovered no comparative analyses to be initially compliant—however haven’t but issued any remaining determinations of non-compliance, though some inquiries are ongoing.
The Tri-agencies’ report additionally confirms the enforcement priorities specified by EBSA’s FAQs Half 45, offering extra information on the NQTLs for which the Tri-agencies most regularly requested comparative analyses and figuring out consultant themes and examples of the methods during which the submitted comparative analyses fell brief. Constructing on these themes, the report gives some commentary on what constitutes a compliant comparative evaluation. Notably, this contains demonstration of parity compliance for NQTLs as utilized, which can be tough to measure. Prior Tri-agency steerage, together with EBSA’s Self-Compliance Instrument, has emphasised that outcomes aren’t determinative of compliance, however that outcomes analyses could also be used to determine “pink flags” or areas for compliance overview.
The 2022 annual report is barely the start of the post-2021 CAA period. The report signifies that the Tri-agencies intend to promulgate extra regulatory amendments in 2022 by way of discover and remark rulemaking. As well as, the Tri-agencies search enhanced enforcement instruments—particularly the authority to evaluate civil financial penalties for parity violations, expanded scope of enforcement authority, the opportunity of participant and beneficiary restoration for parity violations, amongst different modifications—by way of Congressional motion.
For a extra detailed breakdown of the Tri-agencies’ report findings, learn Crowell’s 2022 MHPAEA Annual Report Consumer Alert. And for extra info, contact the weblog authors or your common Crowell & Moring contact.