In The Spotlight

Mental Health Parity: US Agencies Tasked with Compliance Oversight Do Not Know If They Are Effective

By PWDF Staff

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) requires large group health plans that offer mental health and substance use (MH/SU) services to provide them equally with physical health care services.  See People With Disabilities Foundation’s (PWDF’s) Spring/Summer 2018  e-newsletter (Vol. 33) for background.  As we researched that article, we questioned to what extent the U.S. Departments of Labor (DOL) and Health and Human Services (HHS) were enforcing the MHPAEA.

Consequently, PWDF submitted Freedom of Information Act (FOIA) requests to DOL and HHS (2018-01447-FOIA-OS and F2018-866425 regarding their enforcement of the MHPAEA. We wanted to know the number of investigations opened, the number that were resolved through voluntary compliance, the number of cases that were referred to the agency’s Office of the Solicitor for noncompliance and the results, among other questions. We requested records relating to violations of the MHPAEA, 29 U.S.C. § 1185a, and records relating to the 21st Century Cures Act, Pub. L. No. 114–255 (2016).  As we reported in our Spring/Summer 2019 e-newsletter (Vol. 37), DOL’s response was  inadequate and HHS had not responded.[¹]

Congress had similar concerns, as they tasked the General Accountability Office (GAO) with reporting on the extent to which group health plans and insurers have complied with the MHPAEA, how the responsible federal agencies ensure the plans comply with MH/SU parity requirements, including how HHS has “used its authority to conduct audits… to ensure compliance;” review how the federal and state agencies that are responsible for enforcing the requirements have improved their enforcement according to their action plans; and make recommendations for how additional enforcement, education, and legal authority could ensure compliance.[²]

GAO found[³] that nearly all the states that responded to their survey reported that they perform some review for compliance before plans are sold to consumers.  DOL and HHS reported that they conducted reviews of certain plans when they receive consumer complaints.  They were not proactively investigating compliance with mental health and substance use parity laws. This targeted approach resulted in a very small percentage of plans being reviewed for MHPAEA compliance: according to GAO, DOL only conducted 302 reviews of parity compliance over a 2-year period in which it had oversight of 2.2 million plans.  GAO concluded that “the full extent of compliance with MH/SU parity requirements is not known.”[⁴]

GAO reported that DOL and HHS have not evaluated whether solely conducting this type of targeted review increases the risk of noncompliance.  According to the report, consumer complaints may not be indicative of the number of enrollees facing problems and relying on complaints as the source of investigations has limitations.  Issues of concern include consumers’ lack of knowledge of parity requirements, reticence to file a complaint because of the stigma of receiving MH/SU services or concerns about privacy, and the complexity of evaluating non-quantifiable treatment limitations (NQTLS). For example, if a MH/SU treatment requires prior authorization before it is covered, the consumer would not be able to discern whether there is parity. Without these evaluations, GAO concluded that DOL and HHS “do not know if their oversight is effective.”  Another issue of concern is that DOL and HHS take a position that they lack authority to pursue certain types of enforcement actions. This is disingenuous.

GAO recommended that DOL and HHS evaluate whether their targeted reviews based on complaints or information received is effective for ensuring compliance and develop plans for more effective oversight.  It also recommended that DOL and HHS “seek additional oversight authority, as warranted.”[⁵]

Given the results of the GAO investigation, it is understandable that we received no realistic answers to our questions of the DOL and HHS, submitted two years ago. While both agencies have authority to conduct full comprehensive reviews, apparently none have been done in the 12 years since the law was passed. It seems ineffective to rely solely on consumer complaints and comments to judge compliance with the law.  One reason given for not conducting more comprehensive reviews was “…DOL identified audit resources challenges faced by the agency given the universe of plans DOL oversees and reported that the agency is taking steps to better leverage its resources through targeted exams in its September 2019 enforcement report to Congress. Specifically, DOL reported that DOL has less than one investigator for every 12,500 employee benefit plans the agency oversees…”[⁶] Given that the DOL’s national discretionary budget for 2020 is nearly $11 billion[⁷] we would expect that they could have done more in the time they have had to create stronger oversight had they desired to do so.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.

Continuing Education Provider: State Bar of California MCLE and Commission of Rehabilitation Counselor Certification.