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Mental Health Parity Legal Requirements for
Employer Health Plans: Increased Risks
to Plan SponsorsMHPAEA Compliance, Enforcement, Litigation and Best Practices for Health Plan Audits
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TUESDAY, JULY 17, 2018
Presenting a live 90-minute webinar with interactive Q&A
Ryan C. Temme, Attorney, Groom Law Group, Washington, D.C.
Christopher W. Welsch, Attorney, Winston & Strawn, Chicago
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JUL Y 17, 20 18
Mental Health Parity Legal Requirements for Employer Health
Plans: Increased Risks to Plan Sponsors
Ryan TemmeGroom Law Group
Washington, DCRTemme@groom.com
Chris WelschWinston & Strawn LLP
Chicago, ILCWelsch@winston.com
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Overview
I. Overview of MHPAEA requirements and exceptions for plans providing MH/SUD benefits
II. DOL, HHS and Treasury guidance for MHPAEA and ERISA compliance
III. DOL parity compliance enforcement and handling health plan audits
IV. Class action lawsuits and preventative methods to avoid them
V. Best practices for conducting internal audits of group health plans for MHPAEA compliance
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T h e M e n t a l H e a l t h P a r i t y A c t o f 1 9 9 6 p r o h i b i t s g r o u p h e a l t h p l a n s f r o m p l a c i n g l i f e t i m e o r a n n u a l l i m i t s o n m e n t a l h e a l t h b e n e f i t s t h a t d i d n o t a p p l y t o s u b s t a n t i a l l y a l l m e d i c a l / s u r g i c a l b e n e f i t s .
T h e P a u l W e l l s t o n e a n d P e t e D o m e n i c i M e n t a l H e a l t h P a r i t y a n d A d d i c t i o n E q u i t y A c t o f 2 0 0 8 ( t h e “ A c t ” ) p a s s e d i n 2 0 0 8 a n d w a s i n t e n d e d t o p r o v i d e p a r i t y f o r t r e a t m e n t l i m i t s a n d f i n a n c i a l r e q u i r e m e n t s .
T h e A c t w a s e f f e c t i v e J a n u a r y 1 , 2 0 1 0 f o r c a l e n d a r y e a r p l a n s ( p r i o r t o t h e i s s u a n c e o f r e g u l a t i o n s ) .
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I. Overview of MHPAEA requirements and exceptions for plans providing MH/SUD benefits
Background: MHPAEA Regulations
Interim Final Rule (IFR) was issued by IRS, CMS and DOL on February 2, 2010.
The IFR was applicable for the first plan year beginning on or after July 1, 2010.
IFR established parity standards for financial requirements, quantitative treatment limits and non-quantitative treatment limits on a classification-by-classification basis.
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Interim Final Rule
The IFR required parity for both quantitative and non-quantitative treatment limits (“NQTLs”).
NQTLs are any limitation on the scope or duration of coverage that cannot be measured numerically.
The IFR also required that parity be analyzed on a classification basis, and described six classifications that plans must use. Inpatient, in-network; Inpatient, out-of-network; Outpatient, in-network;
Outpatient, out-of-network; Emergency care; and Prescription drug
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Final Rule
The Final Rule was issued by IRS, CMS and DOL on November 13, 2013
The Final Rule was applicable for the first plan year beginning on or after July 1, 2014
The Final Rule permitted sub-classifications, established requirements for intermediate levels of care and added examples of non-quantitative treatment limits
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Classifications and Coverage Units
Specific classifications required by the rule are: Inpatient, in-network
Sub-classification for multiple network tiers;
Inpatient, out-of-network
Outpatient, in-network
Sub-classification for office visits;
Sub-classification for multiple network tiers;
Outpatient, out-of-network
Sub-classification for office visits;
Emergency care
Prescription drug
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Financial Requirements
The Act requires that financial requirements that apply to mental health or substance use disorder benefits be “no more restrictive than the predominant financial requirements applied to substantially all medical and surgical benefits covered by the plan.” Financial requirements include deductibles, copayments, coinsurance and out-of-
pocket maximums
A plan may not (without passing the parity tests) treat all mental health/substance abuse disorder providers as specialists and automatically apply a higher copayment than for primary care physicians for medical/surgical
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Financial Requirements – Add’l Guidance
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MHPAEA Final Rule “[A]ny reasonable method may be used to determine the dollar amount expected to
be paid under a plan for medical/surgical benefits subject to a financial requirement or quantitative treatment limitation.” 45 CFR 146.136(c)(i)(E).
Data must be reasonable and must result in reasonable projections.
FAQs in April and October provided additional guidance on the flexibility that issuers retained to utilize data that is not specific to the plan in question.
Data Requirements Under FAQs
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Step 1: Large group/self-funded: Is group health plan level data sufficient? Small group/individual: Is plan level data (combination of benefit design, cost-sharing, network type, and service area) sufficient? If yes, then that data must be used. If no, then go to Step 2.
Step 2: Large group/self-funded: Is product level data (note: not a defined term) sufficient? Small group/individual: Is product (combination of benefit design, network type, and service area) level data sufficient? If yes, then that must be used. If not, then go to Step 3.
Step 3: All markets: Use data from other similarly structured products or plans with similar demographics that is actuarially appropriate.
Quantitative Treatment Limits
Quantitative treatment limitations – expressed numerically. Examples are day and visit limits
Same predominant and substantially all test as financial requirements
Quantitative treatment limits cannot accumulate separately
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Non-quantitative Treatment Limits: Defined
Non-quantitative treatment limitations are limitations that affect the scope or duration of benefits under the plan that is not expressed numerically. Any processes, strategies, evidentiary standards or other factors used in applying the
non-quantitative treatment limitation to mental health/substance use disorder benefits must be comparable to and applied no more stringently than the processes, strategies, evidentiary standards or other factors used in applying the limitation with respect to medical/surgical benefits in the same “classification.”
Under the Interim Final Rule, variation was allowed to the extent that recognized clinically appropriate standards of care may permit a difference.
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Non-quantitative Treatment Limits: Examples in the Final Rule
The Final Rule includes additional examples of NQTLs including (1) sub-classifications for multiple network tiers and benefits furnished on an outpatient basis; (2) variation in training and state licensing requirements; (3) medical management techniques; (4) coverage of treatment settings; (5) geographic coverage limitations; and (6) prior authorization requirements.
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Non-quantitative Treatment Limits: Provider Reimbursement and Qualifications
Provider Reimbursement Rate and Provider Qualifications Issuers and plans may consider the following in determining provider
reimbursement rates for mental health and substance use disorder providers:
Service type
Geographic market
Demand for services
Supply of providers
Provider practice size
Medicare reimbursement rates
Training, experience, and licensure of providers
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Residential Treatment, Partial Hospitalization and Intensive Outpatient Treatment
Plans and issuers must assign covered “intermediate mental health and substance use disorder benefits” to the existing six benefit classifications in the same way that they assign comparable intermediate medical/surgical benefits to those classifications.
The Final Rule requires assignment of covered services for intermediate levels of care and is not a mandate. The new Facility Type NQTL could require care in certain settings, however.
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Preventive Services
Under the Interim Final Rule, if a plan or issuer provides mental health/substance use disorder benefits in any classification, mental health/substance use disorder benefits must be provided in every classification in which medical/surgical benefits are provided.
Section 2713 of the PHSA requires non-grandfathered group health plans and issuers to provide coverage for certain preventive services without cost sharing – includes alcohol misuse screening and counseling and tobacco use screening.
The Final Rule clarifies that compliance with Section 2713 of PHSA will not require that the full range of benefits for a mental health/substance use disorder be provided under the Act.
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State Insurance Law
The Final Rule clarified that if a state law requires an issuer to offer coverage for a particular condition or offer a minimum dollar amount of mental health/substance use disorder benefits, the benefits for that condition must be provided in parity with medical/surgical benefits.
If a state mandates a mental health benefit, and requires an annual dollar limit, the annual dollar limit is preempted by the Act.
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Required Disclosure
The Final Rule requires the following disclosures:
o plan information on medical necessity criteria must be disclosed to contracting providers;
o the reason for denial of a claim for mental health/substance use disorder services must be disclosed to the participant, or the participant’s authorized representative (including authorized providers);
o information on medical necessity criteria for mental health/substance use disorder benefits (and processes, strategies, evidentiary standards, and other factors used to apply non-quantitative treatment limits) are considered plan documents under which the plan is “established or operated” that must be furnished to plan participants under section 104 of ERISA.
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No Annual Parity Analysis
Plan or issuer is not required to perform the parity analysis each plan year unless there is a change in plan benefit design, cost-sharing, or utilization that would affect a financial requirement or treatment limitation within a classification (or sub-classification).
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Key Parity Issues
Autism/ABA coverage
Treatment of transgender benefits
Coverage of residential treatment centers
Financial testing – Book of Business Testing
Reimbursement parity
Medical management – preauthorizaiton, concurrent care
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Private & Public Enforcement
MHPAEA may be enforced by both public and private parties
Public Enforcement (Federal and State) State Insurance regulators (against insurers)
HHS (against insurers and nonfederal gov’t plans)
DOL (against group health plans)
IRS (against group health plans and church plans)
Private Litigation Class actions by individual and group policyholder subscribers
Individual lawsuits by individual and group policyholders (including employers as plan fiduciaries)
Associations of providers and advocacy groups (see MHPAEA cases)
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• FAQs on MHPAEA Implementation
• Most recent proposed FAQs Part 39
• Updated compliance tool
• Earlier FAQs for MHPAEA
• Regulations
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II. DOL, HHS and Treasury guidance for MHPAEA and ERISA compliance
MHPAEA FAQs
FAQs About Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act Released jointly by three departments: DOL, HHS and Treasury
DOL: Employee Benefits Security Administration (EBSA)
HHS: Centers for Medicare and Medicaid Services (CMS)
Treasury: Internal Revenue Service (IRS)
Reflects overlapping enforcement responsibilities
Different jurisdictions of IRS, EBSA, CMS over coverage providers
ERISA, the Code, and PHSA
See also: FAQs about Affordable Care Act Implementation
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Proposed MHPAEA FAQs 39
Released April 23, 2018 Comments went through June 22, 2018
Awaiting finalized FAQs
MHPAEA self-compliance tool
Reports (Part III of webinar) 2018 Report to Congress (Pathway to Full Parity)
2017 MHPAEA Enforcement Fact Sheet
Action plan for enhanced enforcement
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Proposed MHPAEA FAQs 39
Updated draft model disclosure form (FAQ 1) Individuals use to request information pertaining to plan MH benefits
Updated from 2017 version
Describes MHPAEA requirements (2-page summary)
Participant selects options that describe their benefit claim denial (or general information request)
Participant selects options for specific information requested, such as plan language, decision factors, evidentiary standards
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Proposed MHPAEA FAQs 39
Participant information request Group health plan generally must respond within 30 days of request
Claim denials often prompt the request But no justification is needed to make MHPAEA information request
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Proposed MHPAEA FAQs 39
NQTL issues covered in FAQs 2-10 Experimental limitations
Autism Spectrum Disorder and Applied Behavioral Analysis (ABA)
Opioid use disorder & dosage limits
Prescription drug limitations
Step therapy
Reimbursement rates
Network adequacy
Medical appropriateness
ER
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Updated MHPAEA Self-Compliance Tool
Checklist tool updated for 2018
Plan sponsors can use in self-audit for MHPAEA compliance
DOL investigators use the same checklist in EBSA investigations
Covers MHPAEA obligations Whether the plan is subject to MHPAEA
Six classifications
Financial requirements
Treatment limitations, both quantitative and non-quantitative
Disclosure requirements
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MHPAEA FAQs
3 Departments (DOL, HHS, Treasury) but DOL site generally has the most easily accessible listing of all the FAQs Current link: https://www.dol.gov/agencies/ebsa/laws-and-
regulations/laws/affordable-care-act/for-employers-and-advisers/aca-implementation-faqs
Originally ACA FAQs, but many of the FAQs touch on MHPAEA MHPAEA is 3-department market reform, similar to ACA
Both integrated into ERISA, PHSA, and tax Code
Implementation happening around the same time as ACA
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MHPAEA FAQs
Part V (Dec 22, 2010) – small employers; information requests; cost exemption
Part VII (Nov 17, 2011) – preauthorization; medical management; evidentiary standards; copayments
Part XVII (Nov 8, 2013) – effective dates; NQTLs; MHPAEA coverage; medical management; information requests
Part XVIII (Jan 9, 2014) – ACA & MHPAEA
Part XXIX (Oct 23, 2015) – information requests (trade secrets)
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MHPAEA FAQs
Part 31 (Apr 20, 2016) – financial requirements and QTLs; preauthorization; information requests (potential enrollee); opioids
Part 34 (Oct 27, 2016) – NQTLs; information requests (enforcement); FRs & QTLs; opioids; preauthorization; court-ordered treatment
Part 38 (Jun 16, 2017) – information requests; eating disorders
Part 39 (proposed)
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Regulations Implementing MHPAEA
IFR released by 3 Depts in 2010, implementing MHPAEA
Final Regulations implementing MHPAEA published 2013 IRS: Treas. Reg. § 54.9812-1
TD 9640
DOL: Labor Reg. § 2590.712
HHS: 45 CFR § 146.136
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• DOL enforcement record and history
• DOL Action Plan, with HHS and IRS, re priorities and next steps
• Investigation process
• Outcomes of DOL investigations
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III. DOL parity compliance enforcement and handling health plan audits
DOL parity enforcement
EBSA closed 347 health investigations in FY 2017 3,286 health investigations closed since FY 2011
Of 347 closed investigations in 2017, 187 involved plans subject to MHPAEA (53.9%)
Of 187 investigations where MHPAEA applied in 2017, EBSA cited 92 violations for MHPAEA noncompliance (49%)
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DOL parity enforcement
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DOL parity enforcement
EBSA closed 330 health investigations in FY 2016
Of 330 closed investigations,191 involved plans subject to MHPAEA (57.9%)
Of 191 investigations where MHPAEA applied, EBSA cited 44 violations for MHPAEA noncompliance (23%)
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DOL parity enforcement
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DOL parity enforcement
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DOL parity enforcement
DOL enforcement: Back to 2010, NQTLs are the most common violation
NQTLs are about as common as all the other violations together
Frequency: a few hundred cases a year
Outcome:
In 2016, a quarter of DOL investigations had MHP violations of any type
In 2017, half of DOL investigations had MHP violations of any type
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MHPAEA enforcement Action Plan
Action Plan for Enhanced Enforcement (HHS, DOL, Treasury) EBSA to continue enforcement against employer plans
CMS enforces against nonfed gov plans (and insurers, with the states)
EBSA is establishing dedicated MHPAEA enforcement teams investigations of behavioral health organizations & insurance companies
DOL updated self-compliance checklist re NQTLs and disclosure
Regulatory focus on disclosure requirements to participants
Parity Portal for consumers to determine if parity violation occurs www.hhs.gov/parity
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DOL MHPAEA Audits
45
Comprehensive MHPAEA audits—which focus on issuers when group health plan is insured. Some investigations of insurer’s entire book of business
What’s Being Examined? Parity of financial benefits/cost-sharing
Comparison of treatment limits for med/surgical and MH/SUD benefits
Comparison of NQTLs for med/surgical and MH/SUD benefits
Disclosure of denied/partially denied mental health/substance use disorder claims
All external review decisions relating to MH/SUD claims
Analyses by plan or issuer re: testing of NQTL for parity
Autism benefits
DOL Audits – Enforcement Authority
46
DOL authority is very broad DOL does not need reasonable cause to investigate
Investigation can focus on any party
Subpoena power
Audit can lead to penalties through other agencies Example: DOL often shares information with IRS
DOL Audits – Enforcement Priorities
47
Financial Requirement Testing
NQTLs – Medical Management, RTC
Disclosures
Claims review Accuracy and timing
DOL Audits – Document Request
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Plan documents in effect
Summary plan description
Trustee or fiduciary committee minutes
Form 5500/Summary Annual Report
All correspondence with plan service providers, or relating to any plan matter
Sponsor annual reports, contracts with insurers
Detailed documentation of plan administrative expenses
Fidelity bond and fiduciary liability policies
List of sponsor’s officers, board of directors
Other plan materials (Trust and participation agreements, plan merger documents, participant
contribution records, investment policy, plan receipt and disbursement journals)
DOL Audits – Potential Outcomes
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Voluntary Compliance notice letter (“10-Day letter”) describes violations and “invites” correction
Settlement agreement DOL’s claim for ERISA violation is released in return for cash or property tendered to
a plan, participant, or plan beneficiary
Results from negotiation between parties regarding implementation of correction
Penalty likely applies with respect to settlement amount
Closing letters No violations
No action warranted - Even though violations may have been identified
Compliance achieved - Violations were identified and correction may have been made to DOL’s satisfaction
• P r iv at e enfor cem ent l i t igat ion
• DOL has been slow to litigate enforcement of MHP
• Private litigation is enforcing MHP• M ajor issu es
• Treatment exclusions & limitations• Autism and applied behavior analysis (ABA)
• Addiction and residential treatment centers (RTC)
• Transgender-related benefits
• Reimbursement rates
• Preauthorization
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IV. Class action lawsuits and preventative methods to avoid them
Class action MHPAEA lawsuits - ABA
Applied behavioral analysis (ABA) Incredibly broad discipline, not just autism treatment
Common point of contention in health plans re autism treatment
ABA acceptance Increasingly common in health plans
Employees may demand coverage; ABA is generally very expensive
State law may require ABA coverage in insurance
Missouri fined Aetna $1.5M in 2012 and $4.5M in 2015 for failure to cover autism spectrum disorder, including ABA therapy
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Class action MHPAEA lawsuits - ABA
Excluding ABA from group health plan MHPAEA allows a plan to exclude ABA as experimental/investigative
This is a nonquantitative treatment limitation
The standard for experimental/investigative must be the same for medical/surgical benefits as for ABA and MH/SUD benefits
ABA exclusion in MHPAEA FAQs, Part 39 Q/A-2 covered a discriminatory exclusion of ABA as experimental
Plan definition of experimental must be consistent for medical & MH
52
Class action MHPAEA lawsuits - ABA
Autism exclusion MHPAEA does not necessarily require autism coverage
State law often mandates autism coverage, where applicable
Employees may expect or demand autism coverage
Is autism mental health? Autism might not be per se mental health (FAQs 39 sidestepped)
Courts have held it is MH for at least some purposes; state laws have
DSM and ICD define as developmental disability
Plan should be clear if taking position autism is not mental health
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Class action MHPAEA lawsuits - ABA
A.F. v. Providence Health Plan (D. Or. 2014) Class certified & case decided
Case was decided against Providence
Anthem developmental disability exclusion for ABA therapy
Developmental disability exclusion violates MHPAEA (& Oregon law)
Developmental disabilities are mental health conditions for MHPAEA Looked at Oregon state law, cf. NJ state law, federal law
54
Class action MHPAEA lawsuits - ABA
Wilson v. Anthem (W.D. Ky.) Class certified
Anthem limits coverage for autism
1,000 hrs/yr for ages 1-6
20 hrs/mo for ages 7-21
Plaintiff alleges QTL and annual limit violations
Anthem argued autism may not be MH in all states and may vary by individual and so mental health cannot be answered class-wide
Court certified class; autism & MH is a common question to the class
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Class action MHPAEA lawsuits - ABA
Graddy v. Blue Cross Blue Shield (E.D. Tenn. 201) Class denied
Denial of coverage for ABA
Claims needed individualized assessments, so class denied
More cases pending Categorical exclusions of ABA
Medical necessity and ABA
Categorical exclusion of autism
Age and frequency QTLs on treatment
56
Class action MHPAEA lawsuits - ABA
Extensive settlements over ABA; not an exhaustive list Many of these are standalone insurers, not employer GHPs
State law generally always applies to insurer coverage
Settlements (2014): Premera Blue Cross (W.D. Wash.) Class certified
Federal W.D. Wash., also 2 state court cases in WA
$3.5M settlement
Premera BC agreed to end outright exclusions for autism treatment and remove age-based limitations
57
Class action MHPAEA lawsuits - ABA
Settlement (2014): Churchill v. Cigna (E.D. Pa.) Class certified
Cigna excluded ABA therapy from standard plans
$2.4M for 400 class members
Settlement (2015): C.S. v. Boeing Master Welfare Plan (W.D. Wash.) Class certified
Employer group health plan
No covered providers offered ABA therapy
Allegation: plan excluded all ABA with hidden limitations and exclusions
$900,000 for 1,400 claims
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Class action MHPAEA lawsuits - ABA
Settlement (2016): A.P. v. T-Mobile USA EB Plan (W.D. Wash.) Class certified
Employer group health plan
$677k for 550 class members
Plan to cover ABA without caps, limits or exclusions
Settlement (April 2018): W.P. v. Anthem (S.D. Indiana) Class certified
Anthem limited hours of ABA therapy covered for children 7+
$1.625M settlement for 200 class members
Anthem to stop using guidelines limiting ABA based on age
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Class action MHPAEA lawsuits - ABA
ABA/autism takeaways State law, if applicable to the group health plan
Age-based limitations on ABA
Flat exclusion after certain age
Hours or sessions limit is QTL and must be equivalent to medical benefits
Medical necessity is NQTL; must use same standard applied to medical
Categorical exclusions likelier to be certified
Medical necessity may require individualized proof (no class)
Medical necessity versus categorical exclusions
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Class action MHPAEA lawsuits - RTC
Residential Treatment Centers Live-in health care facility outside a hospital
Treatment for substance abuse, mental illness, behavioral problems
Alcohol and drug dependency
Eating disorders, anorexia, obesity
Other mental health or personality disorder issues
For MHPAEA purposes, commonly litigated
Wilderness therapy RTC meets Outward Bound
Therapy in a context of hiking/camping context, plus outdoor education
61
Class action MHPAEA lawsuits - RTC
RTC litigation issues Medical necessity and whether patient could be treated elsewhere
E.g. out-patient treatment rather than in-patient RTC
Medical necessity over time, after receiving a level of care
How long of an RTC stay was medically necessary?
Does the RTC meet the plan definition?
Is the treatment provided by appropriate medical professionals?
Is wilderness treatment medically necessary?
Is wilderness therapy covered as RTC?
62
Class action MHPAEA lawsuits - RTC
Daniel F. v. Blue Shield of Cal. (N.D. Cal. 2014) Class denied
Denial of coverage for residential treatment center
Ascertainability would necessitate individualized inquiries to see whether an individual was wrongly denied RTC coverage
Takeaway: individualized medical necessity determinations can avoid class certification
63
Class action MHPAEA lawsuits - RTC
Welp v. Cigna (S.D. Fla. 2017) Case dismissed; proposed class never certified
Employer group health plan
Wilderness therapy denied based on lack of doctors and licensed therapists sufficient to meet the standards of psychiatric RTCs
Case dismissed because plaintiff did not provide a medical/surgical analogue to demonstrate lack of parity for mental health benefits
Takeaway: claim denial over trained/licensed professionals, which is a NQTL; must expect same for medical benefits
64
Class action MHPAEA lawsuits - RTC
William G. v. United Healthcare (D. Utah) Case still ongoing against employer GHP
Multiple wilderness treatment centers denied; preauthorization
Motion to dismiss on SOL grounds denied due to notice failure
Denial letter from plan did not disclose the limitations period, as required by Labor Reg. 2560.503-1(g)(1)(iv), so SOL defense rejected
Takeaway: make sure plan denial letters are compliant in form
65
Class action MHPAEA lawsuits - RTC
Joseph F. v. Sinclair (D. Utah 2016) Case decided against health plan
Categorical exclusion of RTC
Plan argued RTC exclusion applies to both mental health and medical benefits, so does not violate parity (parties agree to treat as NQTL)
Court: plan definition of RTC is exclusively mental health coverage
Takeaway: review categorical exclusions for parity effects
66
Class action MHPAEA lawsuits - RTC
Michael P. v. Aetna Life Ins. Co. (D. Utah, 2017) Case decided in favor of employer GHP
RTC coverage required RTC be licensed under Aetna criteria and be supervised by licensed psychiatrist; RTC facility at issue was neither
Court: if the licensing requirements are clinically appropriate with regard to RTCs, then no disparity even if it reduces MH treatment
Takeaway: medical necessity can survive disparate outcomes
67
Class action MHPAEA lawsuits - RTC
Settlement: Craft v. Health Care Serv. Corp. (N.D. Ill. 2015) Class certified
$5.25M settlement
Court: RTC exclusion resulted in less coverage of medically necessary care than that covered for medical benefits
Note: This seems directly at odds with Michael P. v. Anthem, but defendant here failed to define RTC coverage based on medical necessity
Takeaway: medical necessity is safer than categorical exclusion
68
Class action MHPAEA lawsuits - RTC
Other RTC issues being litigated: Categorical exclusion of RTCs
Precertification
RTC litigation takeaways Medical necessity is safer than categorical exclusion
Individualized necessity determinations can avoid class certification
Licensing requirements for RTCs
Review categorical exclusions for parity effects
69
Class action MHPAEA lawsuits
Other issues
Reimbursement rates: New York State Psychiatric Association allowed to sue Anthem over reimbursement
rates
Associations can litigate under MHPAEA to serve corporate purpose
Eating disorders See FAQs Part 38; eating disorders are mental health conditions and eating disorder
coverage is a mental health benefit under MHPAEA
Opioid addiction and treatment
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• Comprehensive Review of MHPAEA compliance
• Either conduct in house or through counsel/consultants
• Eliminates significant M H P A E A c o m p l i a n c e r i s k
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V. Best practices for conducting internal audits of group health plans for MHPAEA compliance
Internal Audits
Classifications How is the plan classifying benefits
Are criteria used and applied consistently
Are there any red flags (i.e., all lab benefits are considered medical)?
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Internal Audits
Financial Requirements The basics – Does the plan have support under the “substantially all” and
“predominant level” tests for cost shares imposed on MH/SUD benefits.
What methodology did the plan/issuer use.
How frequently is the testing updated?
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Internal Audits
Step 1 – Identify NQTLs that apply to MH/SUD benefits
Step 2 – Review why/how the plan imposes them on MH/SUD benefits
Step 3 – Document the analysis supporting the NQTL
Step 4 – Update policies and procedures to bolster that analysis
74
Internal Audits
Disclosures Does the plan have the ability to respond to requests under 104(b) of ERISA
regarding NQTL compliance?
Can the plan provide supporting documents in the event of a benefits denial?
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Questions?
Ryan TemmeGroom Law Group
Washington, DCRTemme@groom.com
Chris WelschWinston & Strawn LLP
Chicago, ILCWelsch@winston.com
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