On August 12, 2021, the U.S. Department of Labor (“DOL”) issued a press release regarding a groundbreaking settlement reached with United Healthcare Insurance Co., United Behavioral Health and Oxford Health Insurance, Inc. The settlement will require payment of more than $15.6 million, in both penalties and reparations to participants, and other corrective actions following investigations and litigation by the DOL and the New York State Attorney General. These enforcement actions represent the first instance in which the DOL has initiated litigation to enforce the Mental Health Parity and Addiction Equity Act (“MHPAEA”) in the 13 years since its enactment. Coupled with the passage of the Consolidated Appropriations Act (“CAA”), which amended the MHPAEA, effective February 10, 2021, to require group health plans and health insurance carriers offering both medical/surgical and MH/SUD benefits to perform and document their comparative analyses of the design and application of nonquantitative treatment limitations (click here for more information included in our client alert entitled, “Will Federal Rules on Mental Health Parity Work This Time?”) and to report their findings to state and local agencies, the publication of a self-compliance tool by the DOL, and the DOL’s beginning to issue audit requests expressly asking for the comparative analysis required by the CAA amendments, it is clear the DOL is prioritizing MHPAEA enforcement.
Further, to eliminate any doubt, the press release quotes U.S. Secretary of Labor, Marty Walsh, as saying, “protecting access to mental health and substance use disorder treatment is a priority for the Department of Labor.”
Plans and issuers should immediately conduct the required comparative analysis and maintain detailed documentation of that process, using the DOL’s self-compliance tool as a guideline. ERISA counsel may also be consulted for guidance and to determine whether the process has generated the documentation now being requested by the DOL on audit.