The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA) requires group health plans that provide mental health or substance use disorder (MH/SUD) benefits to offer parity between coverage of physical health conditions and mental health conditions. The Department of Labor (DOL) Employee Benefits Security Administration (EBSA) enforces MHPAEA and reports annually to Congress on how agency investigators are working with plan sponsors and administrators to bring them into compliance.

Recent DOL reports on MHPAEA enforcement indicate several pitfalls that self-funded plan sponsors and their administrative service providers should avoid in order to be compliant with mental health parity rules. A new priority in the 2023 report was impermissible exclusions of key treatments for MH/SUD.

One-Minute Summary

• Recognize that autism spectrum disorder, opioid use disorder and eating disorders are mental health conditionsand therefore treatment of these disorders are mental health benefits covered by mental health parity laws.
• Blanket exclusions of ABA therapy for autism spectrum disorder, nutritional counseling for eating disorders, and medication-assisted treatment (MAT) and medications for opioid use disorder (MOUD) are impermissible.
• Methods that participants use to access care should be in parity. Prior authorization, gatekeepers such as EAP referrals and telehealth are impermissible barriers to access mental health benefits.

The following are learnings for group health plans and administrators from DOL’s enforcement report and fact sheet.

Key Mental Health Treatments

Avoid total exclusions of key treatments for MH/SUD conditions. The three key treatments identified were:

1. Applied behavior analysis (ABA) therapy for treatment of autism spectrum disorder (ASD)
2. Medication-assisted treatment (MAT) and medications for opioid use disorder (MOUD)
3. Nutritional counseling for eating disorders.

Here are some examples of what the DOL enforcement program has required of plans or service providers to address discriminatory practices (i.e., amend plan and notify affected participants of the change).

• A large claims administrator for self-funded health plans made ABA therapy coverage the default coverage for all its plans instead of offering plans the option to exclude ABA therapy.
• A separate treatment limitation for ABA therapy, requiring the review of provider notes or requiring a treatment plan for ABA therapy claims, were impermissible limitations that were removed.
• A self-funded plan excluded treatment for opioid use disorder with methadone (which must be provided through an opioid treatment program (OPT)) but covered methadone to treat medical/surgical conditions. The OPT exclusion was removed.
• A plan that excluded nutritional counseling for mental health conditions—such as anorexia nervosa, bulimia nervosa and binge-eating disorder—but covered nutritional counseling for medical conditions like diabetes, had to remove the impermissible exclusion.
• A plan limited coverage of nutritional counseling to three visits per calendar year. The plan carved out an exception to this limitation for the treatment of diabetes (a medical/surgical condition) but included no carve out for any MH/SUD benefits. The plan was amended to state that the three-visit limit did not apply to the treatment of any mental or behavioral health diagnoses.

Key Methods to Access Mental Health Benefits

Avoid barriers to access mental health benefits by these three methods:

1. Prior authorization. This is a requirement that the issuer or plan must determine that a health care item or service is medically necessary before the issuer or plan will provide benefits for the item or service.
2. Gatekeeping, like requiring participants to use EAPs before they can access MH/SUD benefits, when there is no gatekeeper to access medical/surgical benefits
3. Telehealth visits with MH/SUD providers, through a phone call or video chat.

The following are examples of what DOL enforcement program has required of plans or service providers to address discriminatory practices in access to mental health benefits:

• A plan had blanket preauthorization requirements for all outpatient MH/SUD benefits but contained preauthorization requirements for only some outpatient medical/surgical benefits. The blanket requirement was eliminated and replaced with a list of some outpatient MH/SUD benefits requiring preauthorization.
• A plan required participants to call an EAP whose call operators acted as gatekeepers, using prescreening questions to decide whether to direct participants to EAP counselors or to refer them to the plan’s network provider for MH/SUD services. Participants are now able to directly contact MH/SUD providers without going through the EAP.
• A self-funded plan that excluded MH/SUD benefits provided via phone, email or internet was required to remove the exclusion.

Investigations Continue

DOL’s mental health parity enforcement efforts have required self-funded group health plan sponsors and administrators to take steps such as ensuring nutrition counseling coverage for people with eating disorders, ABA therapy to treat autism and medication-assisted treatment for opioid use disorders, eliminating blanket pre-authorization requirements for mental health benefits and eliminating gatekeepers for MH/SUD treatment. DOL continues prioritizing mental health parity with the next annual enforcement report expected in July 2024.

Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.