Mental Health and Substance Use: State and Federal Oversight of Compliance with Parity Requirements Varies
Fast Facts
Before 2008, many health insurance plans provided lower benefits for mental health care than other types of medical care. Congress set parity requirements to help address this discrepancy. This means things like copayment amounts or treatment approval requirements must be equal or comparable for mental health and other care.
The Departments of Labor and Health and Human Services commonly find violations of parity requirements in reviews based on unrelated complaints or information. The agencies only base a few reviews on potential parity violations.
We recommended the agencies evaluate the effectiveness of their oversight approaches.
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Highlights
What GAO Found
The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) generally requires that coverage for mental health and substance use disorder (MH/SU) be no more restrictive than coverage for medical/surgical services. State agencies and the Departments of Labor (DOL) and Health and Human Services (HHS) share responsibility for overseeing compliance with these MH/SU parity requirements among group and individual health plans. These oversight practices vary.
While nearly all of the state officials who responded to GAO's survey reported that they perform some review of group and individual insurance plans for compliance with MH/SU parity requirements before they are approved to be sold to consumers, states vary in the frequency and type of reviews they conduct after consumers enroll in plans. For example, officials from 12 states reported that they conducted a targeted review of specific MH/SU parity concerns in 2017 and 2018, with the number of reviews ranging from one to 22 reviews per state.
DOL and HHS conduct targeted reviews of certain employer-sponsored group plans when they receive information—such as consumer complaints—about possible noncompliance with MH/SU parity requirements or other federal heatlh care requirements. Unlike states, these reviews only occur after consumers enroll in these plans. For example, in fiscal years 2017 and 2018, DOL completed 302 reviews that included a review of MH/SU parity compliance in its oversight of 2.2 million plans. Nearly all these reviews originated from complaints or other information about potential noncompliance with federal health care laws unrelated to MH/SU parity.
According to DOL and HHS officials, the departments have not analyzed whether relying on targeted reviews alone increases the risk of noncompliance with MH/SU parity requirements in employer-sponsored group plans. Without such an evaluation, DOL and HHS do not know if their oversight is effective or whether they need to adopt additional strategies.
While states, DOL, HHS, and the research GAO reviewed identified some instances of noncompliance with MH/SU parity requirements, the extent of compliance with these requirements is unknown. States, DOL, and HHS have identified some noncompliance with MH/SU parity requirements based on consumer complaints and other information about potential noncompliance. For example, DOL reported citing 113 violations of MH/SU parity requirements through its reviews in 2017 and 2018. The available research studies GAO reviewed also identified noncompliance with some of the requirements by reviewing plan documentation and benefit data, among other methods. However, according to stakeholders GAO interviewed, complaints are not a reliable indicator of the extent of noncompliance because consumers may not know about MH/SU parity requirements or may have privacy concerns related to submitting a complaint.
Why GAO Did This Study
MHPAEA requires large group health plans that offer MH/SU benefits to ensure parity between MH/SU and medical/surgical benefits. To meet the essential health benefits requirements of the Patient Protection and Affordable Care Act, certain issuers offering small group and individual plans must comply with MHPAEA's MH/SU parity requirements.
The 21st Century Cures Act included a provision for GAO to review federal and state oversight of MH/SU parity requirements and the extent to which health plans comply with these requirements. This report, among other objectives, (1) examines how DOL, HHS, and states oversee health plan compliance with MH/SU parity requirements; and (2) describes what is known about the extent to which health plans are complying with MH/SU parity requirements.
For this report, GAO reviewed DOL and HHS policies, guidance, and reports; conducted a survey and received responses from all 50 states and the District of Columbia about oversight practices; interviewed officials from DOL, HHS, and selected states; interviewed national and state stakeholders; and reviewed available research studies regarding health plan compliance with MH/SU parity.
Recommendations
GAO is recommending that DOL and HHS evaluate whether relying on targeted oversight is effective for ensuring compliance with MH/SU parity requirements or whether alternative approaches are needed. DOL and HHS concurred with GAO's recommendations.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Employee Benefits Security Administration | The Assistant Secretary of Labor for the Employee Benefits Security Administration should evaluate whether targeted oversight in response to information received is effective for ensuring compliance with MH/SU parity requirements. If this evaluation determines the current targeted oversight approach results in significant program risks, the Employee Benefits Security Administration should develop a plan to more effectively enforce MH/SU parity requirements and if necessary seek additional oversight authority, as warranted. (Recommendation 1) |
Closed – Implemented
In June 2021, DOL reported that its Employee Benefits Security Administration developed the Five-Point Mental Health and Substance Use Disorder Enforcement Evaluation Program. This program includes a quality assurance review of its investigations closed in FY 2019 and new centralized record keeping to better capture complaints related to MH/SU parity and track related investigations. DOL also reported using information from its quality assurance review and from enforcement working groups to identify focus areas for enforcement. The Consolidated Appropriations Act of 2021 gave DOL, HHS, and the Department of Treasury new MH/SU parity enforcement tools by requiring group health plans and issuers to document comparative analysis of the design and application of nonquantitative treatment limits. Beginning in February 2021, DOL, HHS, and the Department of the Treasury are required to request these analyses from at least 20 plans and issuers per year for potential MH/SU parity violations, complaints about MH/SU parity noncompliance, and any other instances deemed appropriate. According to DOL, DOL has convened a task force of national and regional subject matter experts to assist in identifying targets to request these analyses, and determine whether a plan or insurance company is in violation of MH/SU parity requirements. DOL reported that it is actively using its new authority.
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| Centers for Medicare & Medicaid Services | The Administrator of CMS should evaluate whether targeted oversight in response to information received is effective for ensuring compliance with MH/SU parity requirements for non-federal governmental plans. If this evaluation determines the current targeted oversight approach results in significant program risks, CMS should develop a plan to more effectively enforce MH/SU parity requirements and if necessary seek additional oversight authority, as warranted. (Recommendation 2) |
Closed – Implemented
HHS agreed with this recommendation. In August 2020, HHS reported that CMS has developed and begun work on a two-part evaluation to determine whether targeted oversight of non-federal governmental plans is effective for enforcing MH/SU parity requirements. In February 2023, we reviewed HHS's completed evaluation, which included (1) a review of non-federal governmental plan documents for compliance with MH/SU parity requirements and (2) a survey of state enforcement authority and regulatory best practices for ensuring MH/SU parity compliance. CMS found, among other things, that it identified a significantly higher percentage of quantitative treatment limit and financial requirement issues through its traditional form filing reviews, and a significantly higher percentage of non-quantitative treatment limit or other Public Health Service Act issues through randomly selecting non-federal governmental group plans for review. The Consolidated Appropriations Act of 2021 gave DOL, HHS, and the Department of Treasury new MH/SU parity enforcement tools by requiring group health plans and issuers to document comparative analysis of the design and application of nonquantitative treatment limits. Beginning in February 2021, DOL, HHS, and the Department of the Treasury are required to request these analyses from at least 20 plans and issuers per year for potential MH/SU parity violations, complaints about MH/SU parity noncompliance, and any other instances deemed. CMS reported that based on GAO's recommendation and the results of its evaluation, it (1) intends to establish through rulemaking its authority to impose civil money penalties when a plan or issuer fails to respond to CMS's notice of a potential violation of MH/SU parity and other Public Health Service Act requirements and directive to provide documentation demonstrating compliance; (2) submitted a proposal to obtain statutory authority to impose civil money penalties for failure to cooperate with a CMS investigation or market conduct exam to assess compliance with MH/SU parity and other Public Health Service Act requirements; and (3) intends to establish through rulemaking its authority to conduct random investigations and market conduct exams for compliance with all applicable Public Health Service Act provisions, in addition to the nonquantitative treatment limits comparative analysis reviews outlined by the Consolidated Appropriations Act, 2021.
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