News

"Under the proposed rules , United Health Group's internal process utilizing the algorithm would be subject to a three-part test, including ... [1] The no more restrictive requirement ... [2] The design and application requirement ... [3] The data evaluation requirement." [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"A self-funded group health plan covered by ERISA is not subject to state-level insurance coverage mandates, and there are currently no federal coverage mandates explicitly requiring coverage for gender-affirming care. However, three federal laws must be considered in deciding whether to exclude gender-affirming care under a self-funded group health plan: Section 1557 of the [ACA], Title VII of the Civil Rights Act ... and the [MHPAEA]."

"[T]he court found no violation of MHPAEA on the face of the plans themselves because the plans' language broadly excluded any 'experimental, investigational, or unproven' treatment, whether for mental health/substance use disorders or medical/surgical benefits. Similarly, the court determined that plaintiffs' allegation that Cigna tailored its coverage guidelines to exclude mental health/substance use disorder treatment was purely speculative." [ S.F. v. CIGNA Health & Life Ins. Co. , No. 23-0213 (D. Utah May 1, 2024)]

"[The] main takeaway from the [DOL's] fact sheet , budget , and the stated Enforcement Projects , as well as recent experience with DOL investigations, is that the following areas may be of particular focus during future DOL investigations: [1] Cybersecurity and participant data issues.... [2] Missing participants ... [3] Illiquid and hard-to-value assets, including private equity and alternative investment classes (such as cryptocurrency) in both defined benefit and defined contribution plans.... [4] Mental health parity and MHPAEA enforcement.... [5] Proper use of plan forfeitures.... [5] Evidence of insurability issues[.]"

"The Ninth Circuit held it sufficient for the plaintiff to allege that the plan applies a more restrictive process to MH/SUD claims than to M/S claims, without needing to demonstrate a categorical denial practice or to identify specifically analogous M/S claims.... Notably, however, the Ninth Circuit upheld the district court’s dismissal of the claim that United had violated specific terms of the plaintiff’s benefit plan." [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"In light of the relatively low pleading standard the Ninth Circuit has set, group health plans and their sponsors, administrators and fiduciaries should pay careful attention to the internal processes they utilize in determining coverage for MH/SUD benefits as compared to M/S benefits. The Ninth Circuit's ruling may significantly impact the health care industry, especially with proposed MHPAEA regulations anticipated to be finalized this year." [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"The standard established in Ryan S. makes it difficult to challenge a Parity Act claim at the pleading stage, which will open up Parity Act lawsuits to discovery. The Ninth Circuit's opinion also makes it easier to bring a putative class action based on a Parity Act violation[.]" [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"The court pointed out that MHPAEA claims present a challenge because there is no specific private right of action that can be brought by an aggrieved individual, nor are there any specific provisions of ERISA that address this situation.... While ERISA's fiduciary duties require adherence to plan terms, the statute contains qualifying language requiring that plan instruments 'are consistent with the provisions of [ERISA].' The court interpreted that language as suggesting that an MHPAEA violation is also a breach of fiduciary duty." [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"This [article] presents an overview of eating disorders and how they are treated. It also covers mental health parity requirements under the Mental Health Parity and Addiction Equity Act (MHPAEA).... In the latest statement on eating disorders, EBSA Assistant Secretary Lisa Gomez writes that people seeking treatment for eating disorders, such as therapy, medications, nutritional counseling, or residential treatment programs, should not face barriers or roadblocks that do not exist for medical treatments."

"Relying heavily on the findings and conclusions of the California state agency, the Ninth Circuit concluded that ... it is enough for such a plaintiff to allege the existence of a procedure used in assessing MH/SUD benefit claims that is more restrictive than those used in assessing medical/surgical claims under the same classification if the allegation is adequately pled in the complaint. A plaintiff doesn't have to allege that they had claims of both types." [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"The court determined that by alleging a systematic denial of his MH/SUD benefit claims and citing the state report's conclusion that the insurer was applying a more stringent algorithmic review process to such claims, the participant had plausibly alleged that the insurer had applied an improper internal process to his claims in violation of the MHPAEA." [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"The court began by clarifying that Ryan did not need to allege a categorical denial practice, or the 'uniform denial of his benefits,' which the district court appeared to require. Simply handling MH/SUD claims more stringently constitutes a Parity Act violation, regardless of whether it leads to uniform denial decisions. The Ninth Circuit further held that Parity Act claimants need not 'identify an analogous category of claims with precision.' " [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"The Ninth Circuit held that, as a matter of first impression, Plaintiff sufficiently alleged that Defendants applied an internal process that violates the Parity Act.... [T]he court noted that there is no clear law on how to state a claim for a Parity Act violation, which can occur in a few forms.... Here, Plaintiff alleged an internal process violation. He did not need to allege a 'categorical' practice or the uniform denial of his benefits." [ Ryan S. v. UnitedHealth Group, Inc. , No. 22-55761 (9th Cir. Apr. 11, 2024)]

"[An] ERISA plan can violate the Parity Act ... by applying ... a more stringent internal process to MH/SUD claims than to medical/surgical claims. A plaintiff ... may be able to allege a plausible claim without having to allege a categorical practice or differential treatment for his or her medical/surgical claims. It is enough for such a plaintiff to allege the existence of a procedure used in assessing MH/SUD benefit claims that is more restrictive than those used in assessing medical/surgical claims under the same classification[.]" [Ryan S. v. UnitedHealth Group, Inc., No. 22-55761 (9th Cir. Apr. 11, 2024)]

"2023 saw three key developments affecting Mental Health Parity: [1] the tri-agencies tasked with enforcing that law issued extensive proposed regulations with respect to duties of plan fiduciaries under the Mental Health Parity and Addition Equity Act of 2008; [2] the [DOL] issued its second report to Congress regarding its enforcement activities; and [3] the courts continued to interpret and apply the law to specific cases."

"Recognize that autism spectrum disorder, opioid use disorder and eating disorders are mental health conditions and therefore ... covered by mental health parity laws. Blanket exclusions of ABA therapy for autism spectrum disorder, nutritional counseling for eating disorders, and medication-assisted treatment (MAT) and medications for opioid use disorder (MOUD) are impermissible.... Prior authorization, gatekeepers such as EAP referrals and telehealth are impermissible barriers to access mental health benefits."

61 pages. "[Recommendations for DOL actions:] [1] Encourage Congress to adopt LTD insurance parity requirements consistent with the spirit of MHPAEA mandates for MH/SUD and physical conditions, and strongly encourage employers to consider whether exclusions and MH/SUD limitations are necessary in the current environment.... [2] Commission research of LTD plans to address unknown actuarial and cost implications of removing the duration limits and to identify the underlying rationale for these limitations, if any.... [3] Urge the insurance industry to present plan sponsors with coverage options without duration limits for MH/SUD conditions.... [4] Provide education to LTD plan sponsors on impact of duration limitations in LTD plans."

"[T]he newly proposed meaningful benefits requirement is separate from, and in addition to, the newly prescribed nonquantitative treatment limitation (NQTL) testing standards.... A handful of comments nevertheless urge the regulators to add scope of services to its non-exhaustive list of NQTLs.... The problem is that a plan's scope of services -- what types of treatments a plan will pay for and in what settings -- is a high-level plan design feature and not an NQTL."

"While it is clear that regulators will not close investigations until they are satisfied no MHPAEA violations exist, they are also currently allowing significant opportunity for plans to cure deficiencies before issuing final determinations.... Plans should be prepared to document the actions they have taken and to demonstrate why any disparities are attributable to provider shortages in the geographic area rather than their NQTLs related to network composition."

"The Legal Action Center claims that plans sometimes develop their own criteria for determining medical necessity for MH/SUD treatment or use criteria developed by nonprofit clinical specialty associations or industry entities ... [and] asks the Departments to revise the definition of 'strategies' to include a definition of 'generally accepted standards of care' that is tied to criteria and guidelines from the nonprofit clinical association for the relevant specialty.... It is possible for the Departments to rely on the proposed regulations' rules governing parity of outcomes to address [these concerns], although [the] proposed fix seems far more efficient."

"This article seeks to provide an overview and explore a few of the recent developments in the mental health parity domain and how such changes might shape the future of mental health care. [1] Finalization of the proposed regulations ... [2] Mental health care and Medicare ... [3] MHPAEA claims in the Tenth Circuit."

"According to the Court, a plaintiff must: [1] Provide a valid determination that the health plan is subject to MHPAEA; [2] State what the underlying Quantitative/Nonquantitative Treatment Limitation (QTL/NQTL) being used by the plan to deny or limit benefits; [3] Name the [medical and surgical (M/S)] benefit used to compare to the MH/SUD benefit in question; and [4] Explain how the health plan applies the QTL/NQTL differently to the M/S benefit than to the MH/SUD benefit. Significantly, the Court did not apply any sort of reasoning requiring that outcomes of MHSUD claims be consistent with M/S claims." [ E.W. v. Health Net Life Ins. Co. , No. 21-4110 (10th Cir. Nov. 21, 2023)]

"The main themes for group health plans in 2024 will be mental health parity, transparency, prescription drugs, and preventive care ... What's expected: [1] New Mental Health Parity rules ... [2] Pharmacy Benefit Manager disclosures and drug coupon guidance ... [3] Final rules on level funded and fixed indemnity plans ... [4] More transparency guidance ... [5] Preventive care litigation and OTC expansion ... [6] Surprise billing adjustments."

"[This post examines] the impact of the proposed regulations on small and medium-sized self-funded plans through the lens of a National Association of Benefits and Insurance Professionals (NABIP) comment letter  ... [which] addressed ... [1] The need for a compliance safe harbor ... [2] Focus on cooperation from service providers ... [3] MHPAEA Self-Compliance Tool."

"The [Tenth Circuit] has continued to focus on residential treatment center claims, having recently issued two additional precedential opinions in cases involving residential treatment centers ... Both of these cases drew amicus briefs (a brief by the National Health Law Program and the Kennedy Forum in E.W., and a brief by the U.S. Chamber of Commerce in Ian C.), and show that the Tenth Circuit is responding to the large numbers of residential treatment cases with lengthy opinions and detailed analysis and guidance." [ E.W. v. Health Net Life Ins. Co. , No. 21-4110 (10th Cir. Nov. 21, 2023); C. v. UnitedHealthcare Ins. Co. , No. 22-4082 (10th Cir. Dec. 5, 2023)]