At nearly the same time, the Department of Labor (DOL) reported that, in 2017, it completed more than 180 investigations on MHPAEA compliance issues, resulting in 92 identified violations. A majority of these violations involved failures to comply with non-quantitative treatment limitations. The enforcement actions particularly affected insurers and other plan vendors, who were required to make global changes to documents and claims procedures, affecting thousands of employer plans.

The recently released guidance focuses on coverage limitations that are non-quantitative in nature and offers instruction on a number of issues. Below are a few key points:

• Several examples serve as warnings that, even if the terms of a plan are neutral between medical/surgical benefits and mental health/substance abuse benefits, discrepancies in practice may lead to violations.
• The complete exclusion of coverage for a particular condition does not violate the MHPAEA, although it could raise issues under other laws—especially if the program is insured and subject to state mandate requirements.
• One example reminds us that disparities in the adequacy of networks (and the standards for establishing adequacy) may result in violations of the MHPAEA.
• The non-quantitative treatment limitations under the MHPAEA apply to the availability of out-of-network coverage as well as in-network coverage.
• The guidance recognizes that any physical effects arising from a mental illness (such as lacerations) may, depending on plan provisions, be treated as part of a mental health/substance abuse condition or may be a separate medical/surgical condition.
• An eating disorder is specifically treated as a mental health condition, but the guidance sidesteps the issue with regard to autism (by addressing a situation in which a plan treats autism as a mental health condition).
• The FAQs include certain general guidance on the disclosure of information—for example, affirming that provider directories may be provided through a link or URL address and that they must be kept up-to-date.

Assuming that these FAQs are finalized in substantially the same form, they will set standards that are used in future enforcement efforts under the MHPAEA. These efforts may be carried out by a new enforcement team created by the DOL to undertake MHPAEA investigations.

In view of the new guidance and enforcement activity, health plan sponsors, insurers, and administrators should review plan provisions and practices to confirm their compliance with current MHPAEA rules.