The managed care industry is well-acquainted with the 2008 Mental Health Parity and Addiction Equity Act (MHPAEA) (and similar state laws), and we have previously alerted readers to the possibility of subsequent legislation in the area that may have a substantial impact on commercial payors, particularly in light of a report by the U.S. Department of Labor (DOL) concluding that all payors audited in 2021 were not complying with the MHPAEA. The DOL’s audit, along with an increasing history of enforcement actions by state insurance departments and a series of actions by the New York Attorney General, has now triggered the interest of numerous state attorneys general (AGs), who in all likelihood will seek to exercise their enforcement powers under MHPAEA, their own states’ parity laws, or unfair and deceptive acts and practices (UDAP) laws on the books in most states – or under all three ‒ according to a recent program sponsored by the National Association of Attorneys General (NAAG) titled “State and Federal Behavioral Health Coverage Parity Enforcement and the Role of Attorney General Offices.”
NAAG’s July 14, 2022 program was facilitated by NAAG’s National Attorneys General Training and Research Institute division via funding from the prior settlement of a multi-state health care enforcement action and was extended to all state AG offices. NAAG programming often leads to multi-state litigation and legislative activity, frequently coordinated by NAAG. Speakers were from the American Psychiatric Association, the Colorado Coalition for the Homeless, and the Massachusetts AG’s office, and the incitement of the states to take action was clear.
The American Psychiatric Association set forth the history of behavioral health parity over the years and the current regulatory and compliance environment, including the DOL report and a related study by the Department of Health and Human Services which conclude that non-compliance with MHPAEA remains an issue.
The Colorado speakers conveyed first-hand their experiences with the current system, including prior authorization requirements for urgent treatments that they contend are a barrier to treatment for those suffering from opioid and fentanyl addiction or otherwise from mental health conditions, leading to escalating rates of suicide arising out the pandemic, all of which are top bi-partisan priorities for AGs.
The Massachusetts AG representative presented the findings of the office’s study on compliance with MHPAEA by payors operating in the Bay State. The representative identified the following areas in which compliance remains a challenge:
- Accuracy of mental health provider directories
- Network adequacy
- Provider reimbursement
- “Utilization management” practices (e.g., prior authorizations)
The presenter also emphasized that practices that violate MHPAEA may also violate the consumer protection laws of the Commonwealth under Massachusetts General Law chapter 93A, which provides for civil penalties as well as injunctive relief for violations. The results of the Massachusetts study have also led the office to consider more robust parity legislation in the Commonwealth – which could be replicated in other states ‒ as well as more stringent proposed insurance regulations.
By all estimations, the video program was well-attended by other states whose questions to the panelists indicated a pointed interest in the topic.
A final question to the panel, and most notably to Massachusetts, was: “What is your top piece of advice?” It drew the response: “Dig in and understand.”
Client Alert 2022-193