In conjunction with a Senate Finance Committee hearing on mental health parity, HR Policy proposed several policies to improve access to behavioral health care and urged Congress not to enact civil monetary penalties against employer plans until DOL provides more detailed guidance. Employers should work with their third-party administrators (TPAs) to address network adequacy as witnesses urged Congress to increase enforcement on employer plans.
Our comments included the following recommendations to Congress:
- Encourage DOL to publish guidance (as required by the Consolidated Appropriations Act of 2021) clarifying employer requirements in conducting mental health parity comparative analyses, and offer additional de-identified examples of comparative parity analyses that are compliant;
- Enact the bipartisan Collaborate in an Orderly and Cohesive Manner Act (H.R. 5218) to promote greater use of the collaborative care model;
- Eliminate restrictions that impede an employer’s ability to provide telehealth services; and
- Expand the use of measurement-based care.
Background: Prior to the CAA, conducting comparative analyses of nonquantitative treatment limits (NQTLs) between behavioral health benefits and medical/surgical benefits was considered a “best practice,” but not statutorily required. Now, employers must complete comparative analyses of the design and application of NQTLs and make them available on request. The initial DOL report(Opens in a new window) to Congress found that none of the selected analyses employers submitted contained sufficient information. In urging more guidance from DOL, HR Policy stated, “When not one employer plan has a sufficient comparative analysis, it is not because none of them want to comply. It is because they do not know how to comply.”
Hearing focused on “ghost networks,” signaling parity reviews may zero in on network adequacy: One of the biggest challenges in addressing the mental health crisis is the lack of in-network behavioral health providers. According to a recent GAO report(Opens in a new window), this issue stems in part from a lack of providers as well as the low reimbursement rates offered by private insurance, disincentivizing providers from joining networks. Sen. Ron Wyden (D-OR) highlighted the issue of network adequacy in his opening remarks and witnesses agreed, stating the lack of available in-network providers should be more aggressively addressed through DOL’s parity enforcement.
President Biden’s proposed 2023 budget(Opens in a new window) includes funds to increase enforcement of the parity laws. The proposed budget includes $275 million over ten years to increase the Department of Labor’s capacity to enforce parity and take action against plans and issuers that do not comply. As fiduciaries under ERISA, employers are responsible for ensuring their third-party administrators and vendors are complying with the rules.
Outside of parity enforcement, witnesses highlighted the effectiveness of telebehavioral health and collaborative care models in addressing behavioral health access. Separately, the Senate Finance Committee released a bipartisan report(Opens in a new window) on mental health care in the U.S. which outlines several reforms to improve access and the quality of behavioral health care, including HR Policy supported proposals, like implementing the Collaborative Care Model.