By Zoya Yarnykh, PWDF Managing Attorney; April Banerjee, PWDF Executive Director; and Damien Chacona, PWDF Program Director for Public Awareness and Education

 PWDF submitted Freedom of Information Act (FOIA) requests to the U.S. Departments of Labor (DOL) and Health and Human Services (HHS), 2018-01447-FOIA-OS and F2018-866425, regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), in August 2018. We requested records relating to violations of the MHPAEA, 29 U.S.C. § 1185a, and records relating to the 21^st Century Cures Act, Pub. L. No. 114–255 (2016).

HHS
We submitted our FOIA request to HHS online on August 29, 2018.  On the same date, they acknowledged the request as received.  After not receiving a response from HHS for nearly 7 months, we sent them a letter on March 28, 2019 about their lack of response and included a copy of our initial request.  HHS replied that they had not received our specific questions with our online request, but now that they had them with our March 2019 letter, they were assigning the request to the Centers for Medicare and Medicaid Services (CMS) for a records search.  On April 10, 2019, we responded by sending a picture of the online screen from August 29, 2018 showing the attached file with our specific questions and asked them to expedite our request.  A few days later, we received a letter from CMS acknowledging our FOIA request.  As of the writing of this article, it has been two months since CMS acknowledged the request and nearly 10 months since our initial request and we still have not received a response.

DOL
PWDF addressed our FOIA request to DOL’s Office of the Solicitor, which then delegated our request to DOL’s Employee Benefits Security Administration (EBSA).  EBSA’s response to several questions was that EBSA had no records that addressed the question. However, our questions were specific to documents that the Office of the Solicitor would have, so we appealed the response from EBSA as being inadequate since our questions originally were addressed to the Office of the Solicitor, not solely EBSA.

PWDF #1: For the past 5 years, the number of investigations that were opened and the number that were closed because the Respondent plans voluntarily complied

Response #1: FY 2017 MHPAEA Enforcement Overview: SUMMARY

The Employee Benefits Security Administration (EBSA) enforces and investigates compliance with the Employee Retirement Income Security Act of 1974 (ERISA), including the Mental Health Parity and Addiction Equity Act (MHPAEA). EBSA also provides participant education and compliance assistance pursuing voluntary compliance from plans on behalf of participants and beneficiaries. The most recent MHPAEA enforcement fact sheet was released by EBSA in fiscal year 2017.

Examples of MHPAEA enforcement actions in 2017 include: removing restrictions on residential treatment, elimination of restrictive financial requirements, reimbursement to participants for excessive copayments, additional coverage for Mental Health (MH) and substance use disorder treatment, elimination of overly stringent precertification requirements, elimination of overly stringent benefit requirements, and repayment of denied claims. For more information about FY 2017 MHPAEA enforcement, you can review the complete report at: https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/mhpaea-enforcement-2017.pdf

PWDF #2: The number of case investigations that DOL staff has referred to DOL’s Office of the Solicitor for noncompliance and the number of cases the Office of the Solicitor has followed up with litigation. For those that were not litigated, what were the results, e.g., those sent back for administrative action, sent for an ALJ hearing or other administrative hearing, or other action (please specify the actions)?

Response #2: No response.

PWDF #3: Copies of Letters of Findings (administrative decisions) for all cases that have been referred to the Office of the Solicitor

Response #3: The DOL produced a DOL Employee Benefits Security Administration (EBSA) FY2017 MHPAEA Enforcement fact sheet relating to investigations of violations of ERISA and a Letter of Finding regarding Anthem, Inc.’s Compliance to ERISA-Covered Health Plans. The following is a summary of violations found by the DOL by Anthem, Inc., [¹] (Anthem) formerly known as WellPoint, Inc., in administering ERISA plans as of May 10, 2016:

1. Anthem failed to establish and maintain a reasonable claims procedure for reviewing claims involving eating disorders as well as other mental health and substance use disorders, including:

• Failing to provide adequate written notice of denied claims;
• Failing to establish sufficient safeguards to verify the accuracy and consistency of its claim determinations;
• Failing to afford claimants a reasonable opportunity to a full and fair review of denied claims;
• Failing to avoid conflicts of interest;
• Failing to process concurrent claims within required timeframes; and
• Unduly inhibiting and hampering the processing of claims for benefits.

2. Anthem’s medical policies for deciding claims involving eating disorders have been inconsistent with the definition of medical necessity in plan documents, and as a result, Anthem improperly evaluates coverage for the treatment of these disorders;
3. Anthem has failed to follow its own medical policies in reviewing claims for the treatment of eating disorders; and
4. Anthem has applied impermissible nonquantitative treatment limitations in reviewing claims for mental health and substance use disorders, including eating disorders.

The DOL included several requirements for Anthem to come into compliance with ERISA regulations. Retrospectively, Anthem had to:

1. Reopen and reconsider all claim denials since January 1, 2010;
2. Reopen and re-adjudicate all mental health and substance use disorder claim and appeals denials since January 1, 2010;
3. Reissue adverse benefit determinations (ABD) to all affected claimants detailing correct and complete information, with an opportunity for claimants to submit additional evidence; and
4. Pay for ongoing coverage during the pendency of claim or appeal involving additional length of stay authorizations.

To ensure that Anthem is in compliance with ERISA regulations in the future, the DOL instructed Anthem to:

1. Update its policies and practices to require automatic disclosure of new and additional information related to a claim at the appeals stage;
2. Prohibit use of internal or external reviewers with conflicts of interest;
3. Issue ABDs at the point of any full or partial denial of requested length of stay;
4. Update its templates and ABDs;
5. Amend the Behavioral Health Medical Necessity Criteria (BHMNC) to comport with generally accepted medical practice;
6. Amend the terms of prototype plans requiring medical management for mental health and substance use disorders;
7. Improve the review, oversight, audit and monitoring for quality control over the adjudication process.

PWDF #4: Whether any complainant has sued DOL for failure to enforce either the MHPAEA or the 21st Century Cures Act.  If so, provide copies of all judicial orders

Response #4: No Response.

PWDF #5: The number of group health plans and health insurance issuers that have violated MHPAEA at least 5 times and the number of plan documents DOL has audited as a result. The 21^st Century Cures Act requires that if the DOL determines that a group health plan or health insurance issuer has violated the MHPAEA at least 5 times, then it shall audit the plan documents for the following plan year in order to help improve compliance. [²]  In our FOIA request, we asked the DOL for the number of group health plans and health insurance issuers that have violated MHPAEA at least 5 times and the number of plan documents they have audited as a result.

Response #5: Their Employee Benefits Security Administration (EBSA) responded that EBSA did not locate any records. [³]  Our appeal to DOL’s Office of the Solicitor was forwarded to the Plan Benefits Security Division (PBSD), which said that a search of their electronic database determined that PBSD has no responsive documents to this question. [⁴]

PWDF #6: A copy of the collaborative report required pursuant to 21st Century Cures Act, Pub. L. No. 114–255 § 13003. The 21^st Century Cures Act also requires DOL, in collaboration with the HHS and Treasury, to produce a report on investigations regarding parity in mental health and substance use disorder benefits by December 2017 and then every year thereafter for the next five years. [⁵]  Congress mandated that this collaborative report summarize “the results of all closed Federal investigations completed during the preceding 12-month period with findings of any serious violation regarding compliance with mental health and substance use disorder coverage requirements” under the MHPAEA.  The contents of this report are to include the number of federal investigations that were closed during the reporting period; the benefit classifications examined by any such investigation; the subject matter of the investigation, including compliance with requirements for quantitative and nonquantitative treatment limitations; and a summary of the basis of the final decision rendered for each closed investigation that resulted in a finding of a serious violation.  We asked for a copy of this report.

Response #6: EBSA replied by providing a copy of a different report.  The report EBSA provided was the most recent (2018) in a series of DOL reports due to Congress  biannially in January.  Thus, the report included DOL data only and was not collaborative with data from all three federal agencies.  PWDF appealed EBSA’s response to the Office of the Solicitor as being non-responsive because it was not the collaborative report mandated by Congress.  Interestingly, the Office of the Solicitor said that EBSA had provided us with documents responsive to this question.  We disagree:  not only is the report not collaborative, the report itself states that it summarizes DOL’s activities, acknowledges that the statute requires it to issue a report in collaboration with HHS and Treasury, and says, “On December 12, 2017, CMS [HHS] issued its first enforcement report.”  We note that in April 2018, several U.S. senators called on the Departments of Labor, HHS, and Treasury to enforce federal mental health parity laws, including provisions of the 21st Century Cures Act.  Among other things, their letter asked some of the same questions we did in our FOIA request and identified this collaborative report as being delinquent. [⁶]  While agencies often miss deadlines, from this information it is impossible to tell whether the agencies are late in producing a collaborative report or if they are not complying with the statute.

Given the scarcity of documents produced by the DOL, and none produced by the HHS thus far (who have denied receiving PWDF’s original request), PWDF is considering filing FOIA complaints in Federal court against these entities. In April 2018, a cadre of U.S. Senators,including Bill Cassidy, M.D. (R-LA), who led the effort to insert mental health reform in the 21st Century Cures Act of 2016, petitioned HHS, DOL, and the U.S. Department of the Treasury “to enforce federal mental health parity laws, including the parity provisions of the 21st Century Cures Act of 2016, to improve behavioral health coverage.” [⁷]