Behavioral Health Claims and Mental Health Parity

Behavioral Health Claims and Mental Health Parity Alan Tawshunsky Tawshunsky Law Firm PLLC Willard Office Building 1455 Pennsylvania Avenue NW, Suite 400 Washington, DC 20004 (202) 621-1781 alan@tawshunsky.com

From 1995 to 2015, Alan Tawshunsky served as a special counsel in the Office of the IRS Chief Counsel and the Office of Tax Policy at the U.S. Treasury Department and as the deputy associate chief counsel for Employee Benefits at the IRS. He played a leading role in the preparation of regulations and other published guidance on all aspects of employee benefits that are within the jurisdiction of IRS and Treasury. As deputy associate chief counsel, Mr. Tawshunsky supervised the employee benefits lawyers in the National Office of the IRS Chief Counsel, and in addition to supervising the preparation of published guidance, he reviewed briefs, private letter rulings and technical advice memoranda issued by the office, relating to employee benefits. Prior to his time at the IRS and the Treasury Department, Mr. Tawshunsky was a law clerk to a federal district court judge and spent 10 years at prominent law firms in Washington, DC. Since 2015, he has been the principal at Tawshunsky Law Firm PLLC.

Behavioral Health Claims and Mental Health Parity Table of Contents I. Introduction...5 II. Overview of the Parity Provisions and Related Statutes...5 A. Mental Health Parity Act of 1996 (MHPA 1996)...5 B. Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA)...5 C. Affordable Care Act (ACA)...6 D. 21 st Century Cures Act...7 E. Practice Notes...8 1. Check Plan for Compliance with Current Law...8 2. In Case of a Dispute, Make Sure to Determine Which Law Applies to Your Case...8 F. Possible Future Changes...8 III. Compliance with the Final MHPAEA Regulations...9 A. Determining the Type of Benefits...9 B. Classifications of Benefits...9 C. Testing Financial Requirements and Quantitative and Non-Quantitative Treatment Limitations...10 1. Financial Requirements and Quantitative Treatment Limitations...10 2. Non-Quantitative Treatment Limitations...11 D. Requirements for 2% Cost Increase Exemption...11 E. Disclosure Requirements...12 IV. Enforcement and Litigation Under the MHPAEA...12 A. Enforcement...12 B. Litigation...12 V. Departments of Labor and HHS Red Flags for Potential Violations...13 Behavioral Health Claims and Mental Health Parity Tawshunsky 3

Behavioral Health Claims and Mental Health Parity I. Introduction The federal government s role in mandating parity between mental health benefits and other medical benefits began with the enactment of the Mental Health Parity Act of 1996 and has been significantly expanded by the Mental Health Parity and Addiction Equity Act of 2008 and the Affordable Care Act. The parity requirements are enforced through a combination of federal agencies, state insurance departments and private rights of action. The interaction of the parity provisions with the ACA, ERISA and other applicable law can be quite complex. II. Overview of the Parity Provisions and Related Statutes A. Mental Health Parity Act of 1996 (MHPA 1996) MHPA 1996 applied only to large group health plans those with more than 50 employees in the prior year that offered both medical/surgical benefits and mental health benefits. It generally prohibited these plans from placing annual or lifetime dollar limits on mental health benefits that were lower than the annual or lifetime dollar limits for medical/surgical benefits offered under the plan. MHPA 1996 allowed other types of limits on mental health benefits e.g., maximum number of visits even if those limits did not apply to medical/surgical benefits. MHPA 1996 did not apply to individual market policies or small group health plans and did not require any group health plan to offer mental health benefits. Moreover, even for large group plans that offered both mental health and medical/surgical benefits, MHPA 1996 provided an exemption from parity if the application of the parity requirements to the plan would raise costs by at least 1%. This exemption could be used every year. B. Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) As originally enacted, the MHPAEA, like MHPA 1996, applied only to large group health plans and did not require any plans to provide mental health benefits, but it expands and tightens the parity requirements in several respects. First, it applies the parity requirements to substance use disorder (SUD) benefits, as well as to mental health benefits. MHPAEA also extends the parity requirements beyond annual and lifetime limits. It prohibits plans that offer both medical/surgical and mental health/sud benefits from subjecting the mental health/sud benefits to separate cost-sharing requirements or treatment limitations that do not apply to the medical/surgical benefits. As discussed below, the regulations provide that these restrictions apply both to quantitative limitations, such as the maximum number of visits covered in a year, and non-quantitative limitations, such as requirements for prior authorization. The MHPAEA contains a cost exemption but it raises threshold for the exemption to 2% of plan costs and tightened the requirements for the exemption. The effect of the requirements is that the exemption can, at most, be claimed for only one out of every two years. The MHPAEA also requires plans to disclose standards for medical necessity determinations and the reasons for any denial of benefits relating to mental health or SUD benefits upon request. The MHPAEA was enacted on October 3, 2008 and became effective for plan years beginning after October 3, 2009. Interim final regulations under the MHPAEA were issued by the Departments of Treasury, Behavioral Health Claims and Mental Health Parity Tawshunsky 5

Labor and HHS (three departments) on February 2, 2010, 75 FR 5410 and generally became effective for plan years beginning on or after July 1, 2010. Final regulations were issued by the three departments on November 13, 2013, 78 FR 68239, and, except with respect to certain collectively-bargained plans, became effective for plan years beginning on or after July 1, 2014. The final MHPAEA regulations, and the preamble to those regulations, explain some of the interactions between the ACA and the MHPAEA described immediately below. Prior to the issuance of the regulations, the three departments had issued some guidance on these interactions in the form of Frequently Asked Questions (FAQs). The FAQs are available on the Labor Department website at www.dol.gov/agencies/ebsa/ laws-and-regulations/laws/affordable-care-act/for-employers-and-advisers/aca-implementation-faqs. C. Affordable Care Act (ACA) Individual market and small group market. The ACA extended the application of the MHPAEA to all policies offered in the individual market and to insured coverage in the small group market that is not grandfathered. Generally, under the ACA, coverage under an individual policy or group health plan is grandfathered if an individual was enrolled in that coverage on March 23, 2010 (the date of enactment of the ACA) and the coverage has not been changed beyond the limits permitted by the regulations under section 1251 of the ACA. The Labor Department regulations on grandfathering are set forth at 29 CFR 2590.715-1251 and there are parallel sets of HHS and Treasury regulations. Essential Health Benefits under the ACA. The ACA lists 10 types of essential health benefits (EHBs). Mental health and substance abuse benefits are one of the 10 types of EHBs. (Note that the ACA refers to substance abuse benefits while the MHPAEA refers to substance use disorder benefits; this outline will use both terms). The EHBs for an individual policy or small group market plan in each state are determined by the reference plan for the state. Whether a plan or policy is required to offer mental health and substance abuse benefits, and whether offering those benefits requires the plan or policy to comply with the parity requirements under the MHPAEA, depends upon: a) whether the coverage is an individual policy on a health insurance exchange, an individual policy outside of the exchange, a group health plan offered by a small employer (no more than 50 employees) or a group health plan offered by a large employer, b) whether the plan or policy is grandfathered, and c) in the case of a group health plan, whether the plan is insured or self-insured. Individual policies and small group health plans. Policies offered on the health insurance exchanges, non-grandfathered policies in the individual health insurance market, and non-grandfathered insured plans in the small group market must provide all 10 types of EHBs and therefore these types of policies and plans must provide mental health and substance abuse benefits that are EHBs. In addition, these policies and plans must comply with the MHPAEA parity requirements with respect to the mental health and substance abuse benefits. Grandfathered policies in the individual market (all of which are outside of the health insurance exchanges) are not required to offer EHBs and thus are not required to provide mental health or substance abuse benefits. If a grandfathered individual policy does provide these benefits, however, it must comply with the MHPAEA. Self-insured group health plans maintained by small employers and grandfathered insured plans in the small group market are not required to provide mental health or substance abuse benefits and are not required to comply with the MHPAEA if they do offer these benefits. Annual and Lifetime Limits on Benefits. The ACA prohibits plans and issuers from imposing any annual or lifetime limits on EHBs. Therefore, if a plan is providing mental health/sud benefits that are EHBs, 6 Life, Health, Disability and ERISA April 2017

it must not impose any annual or lifetime limits on those benefits. If a plan provides mental health/sud benefits that are not EHBs, the ACA does not prohibit the imposition of annual or lifetime limits on those benefits but those limits must still comply with the parity requirements of the MHPAEA (unless the plan is a small self-insured plan or grandfathered small group health plan). Large group plans. Plans in the large group market, whether or not grandfathered, are not required to provide all 10 types of EHBs. However, employers with at least 50 full-time and full-time equivalent employees generally are subject to the provisions of section 4980H of the Internal Revenue Code (Code), which potentially requires the employer to make a payment to the IRS unless the employer offers its full-time employees coverage that meets certain requirements, including a requirement that the coverage offered provide minimum value. To satisfy minimum value, the plan must generally cover 60% of the costs of EHBs that would be required by a standard population. Therefore, if a large group health plan chooses not to provide mental health or substance abuse benefits, but the employer maintaining the plan wishes to avoid becoming potentially subject to the section 4980H payment, the employer will need to provide more generous coverage of other EHBs to attain the 60% threshold for minimum value. If the employer chooses to provide mental health or substance abuse benefits, it must comply with the MHPAEA and, to the extent the benefits are EHBs, it must not impose annual or lifetime limits on the coverage. Preventive services. The ACA also requires non-grandfathered group health plans to provide certain preventive services at no cost. Some of the preventive services that are required to be covered, such as alcohol misuse screening and counseling and depression counseling, are mental health or SUD benefits. The final MHPAEA regulations provide that, if a plan only covers the preventive services it is required to cover by the ACA, and does not provide any other mental health or SUD benefits, it is not required to comply with the MHPAEA. Retiree-only plans. A plan that covers fewer than 2 active employees is exempt from the MHPAEA. D. 21 st Century Cures Act The 21 st Century Cures Act was enacted on December 13, 2016. Title XIII of the Act relates to mental health parity. It contains provisions relating to eating disorders, a peculiar specific provision on enforcement, and directions to the three departments to hold meetings, solicit input, improve coordination and provide additional guidance, examples and other assistance in complying with the parity requirements, as well as various reports. Eating disorders. Section 13007 of the Act, which is titled clarification of existing parity rules provides that if a group health plan or a health insurance issuer offering group or individual health insurance coverage provides coverage for eating disorder benefits, including residential treatment, the plan or issuer shall provide such benefits consistent with the requirements of the MHPAEA. Sections 13005 and 13006 provide that the Secretary of HHS may provide various materials and instruction relating to eating disorders and may try to raise awareness about eating disorders. Enforcement. Section 13001(d) of the Act provides that if the Secretary of HHS, Labor or Treasury determines that a plan or issuer has violated the MHPAEA at least five times, the Secretary shall audit the plan document in the year following the determination. This type of specific direction to an agency to conduct an audit is quite unusual and it is not clear what would constitute five violations for purposes of triggering the mandatory audit. The Secretary is also specifically directed to audit the plan document, though the five violations that trigger the audit could apparently be in operation rather than related to the document. Guidance, compliance assistance, coordination, meetings and reports. Title XIII of the Act also requires the Secretary of Labor and the Secretary of the Treasury to issue further guidance on the MHPAEA within 12 Behavioral Health Claims and Mental Health Parity Tawshunsky 7

months of enactment. It also calls for HHS, Labor and Treasury to provide a compliance document within 12 months to assist plans and issuers in complying with the MHPAEA and calls for public input to be solicited and various reports to be prepared by the agencies and the GAO. E. Practice Notes 1. Check Plan for Compliance with Current Law MHPA 1996 applied to a much narrower range of plans and benefits than the current parity requirements under the MHPAEA and ACA. Moreover, MHPA 1996 contained an exemption for plans whose cost would be increased by the parity requirements by 1% and that exemption could be available every year. The 2% cost increase exemption in the MHPAEA not only has a higher threshold than the MHPA 1996 cost exemption, but it is only available, at most, only once every two years. Claiming the exemption also requires satisfying procedural requirements discussed below. It is important to ensure that your plan has not continued to rely on the limitations or exemption in MHPA 1996 (or the pre-aca version of MHPAEA) that have been superseded under current law. 2. In Case of a Dispute, Make Sure to Determine Which Law Applies to Your Case At this point, any new litigation arising under the mental health parity provisions is likely to be governed by the MHPAEA rather than its predecessor, MHPA 1996. Due to the interaction between the MHPAEA and the ACA, however, it can require a significant amount of work to determine exactly which version of the law applies. The interim final MHPAEA regulations were issued in February 2010, the month before the enactment of the ACA, and thus do not contain any information about the ACA. The interim final MHPAEA regulations became effective after the enactment of the ACA, however, and remained in effect for four years until the effective date of the final MHPAEA regulations. During this period, various provisions of the ACA became effective and guidance was issued by the three departments under those provisions. Despite the lack of guidance in the interim final MHPAEA regulations on the interaction between the ACA and MHPAEA, the courts will apply any statutory provisions of the ACA, and any guidance under those provisions, that had become effective. In working through the applicable law, the FAQs issued by the agencies may be helpful. Although they are not entitled to the same level of deference as regulations, the courts are likely to take them into account in interpreting the statutes. F. Possible Future Changes The mental health parity rules have attracted bipartisan support, most recently in the 21 st Century Cures Act, and are unlikely to be directly repealed or significantly loosened. However, Congress will be considering modification or repeal of the ACA this year and, due to the interactions between the ACA and MHPAEA described above, any changes to the ACA could affect the MHPAEA. It is also possible that changes to the guidance under the ACA could impact the MHPAEA. Congress may attempt to repeal or modify parts of the ACA through the budget reconciliation process, which is not subject to filibuster in the Senate. Of the ACA provisions discussed above, only the potential payment under section 4980H of the Code, for large group health plans that fail to offer adequate coverage to their full-time employees, appears to qualify for the budget reconciliation process. 8 Life, Health, Disability and ERISA April 2017

III. Compliance with the Final MHPAEA Regulations A. Determining the Type of Benefits The final MHPAEA regulations provide that whether a benefit is considered a medical/surgical benefit on the one hand, or a mental health or SUD benefit on the other, is determined under the terms of the plan, which must be consistent with applicable law and generally recognized standards of current medical practice. Example of permissible sources for current medical practice given in the regulations are the Diagnostic and Statistical Manual of Mental Disorders, the most current version of the International Classification of Diseases, or State guidelines. B. Classifications of Benefits The regulations require that plans and issuers divide medical/surgical and mental health/sud benefits into six classifications for testing compliance with the parity requirements. All benefits must be included in one of these six classifications. In some cases, the employer or issuer is permitted to further sub-divide certain of the classifications into sub-classifications. Only the sub-classifications specifically permitted in the regulations may be used for testing compliance. Although testing for parity between medical/surgical and mental health/sud benefits is performed on a classification-by-classification basis, a plan or issuer that provides mental health or SUD benefits in any classification of benefits must provide mental health or SUD benefits in every classification in which medical/ surgical benefits are provided. The six classifications of benefits, and the permitted sub-classifications, are: 1. Inpatient, in-network benefits - benefits furnished on an inpatient basis and within a network of providers established or recognized under the plan or coverage. If the plan or coverage provides more generous benefits, such as lower cost-sharing, for certain in-network providers than other in-network providers (which the regulations refer to as tiers of benefits), it may divide this classification into sub-classifications that reflect the in-network tiers, if the tiering is based on reasonable factors (such as quality, performance, and market standards) and is done without regard to whether a provider provides medical/surgical benefits or mental health/sud benefits. 2. Inpatient, out-of-network benefits - benefits furnished on an inpatient basis and outside any network of providers established or recognized under the plan or coverage. If there is no network of providers, all inpatient benefits are considered inpatient, out-of-network. 3. Outpatient, in-network benefits - benefits furnished on an outpatient basis and within a network of providers established or recognized under the plan or coverage. As in the case of inpatient benefits, if the plan or coverage has tiers of in-network providers, it may divide this classification into sub-classifications based on the tiers. A plan is also permitted to divide this classification into two sub-classifications, one for office visits and one for all other outpatient benefits. It is not permissible under the regulations to treat specialists separately from general practitioners. 4. Outpatient, out-of-network benefits - benefits furnished on an outpatient basis and outside any network of providers established or recognized under a plan or health insurance coverage. Behavioral Health Claims and Mental Health Parity Tawshunsky 9

Similar to inpatient benefits, if there is no network of providers, all outpatient benefits are considered outpatient, out-of-network. As in the case of outpatient, in-network benefits, a plan or issuer is also permitted to divide this classification into two sub-classifications, one for office visits and one for all other outpatient benefits. 5. Benefits for emergency care. 6. Benefits for prescription drugs. A plan or coverage is permitted to provide different tiers of prescription drug benefits, as long as the differences are based on reasonable factors (such as cost, efficacy, generic versus brand name, and mail order versus pharmacy pick-up) and are without regard to whether a drug is generally prescribed with respect to medical/surgical benefits or with respect to mental health/sud benefits. C. Testing Financial Requirements and Quantitative and Non-Quantitative Treatment Limitations The final regulations provide different standards for determining whether limitations on mental health/sud benefits comply with the parity requirements based upon the type of restriction imposed. The regulations divide the types of restrictions into the following categories: financial requirements, quantitative treatment limitations, and non-quantitative treatment limitations (NQTLs). A sub-category of financial requirement consists of cumulative financial requirements and a sub-category of quantitative treatment limitations consists of cumulative quantitative treatment limitations. 1. Financial Requirements and Quantitative Treatment Limitations Financial requirements are not formally defined in the regulations but are described as including deductibles, copayments, coinsurance, or out-of-pocket maximums. Cumulative financial requirements are financial requirements that determine whether or to what extent benefits are provided based on accumulated amounts, and include deductibles and out-of-pocket maximums. Because they are prohibited by the ACA with respect to benefits that are EHBs, aggregate lifetime or annual dollar limits are not considered to be financial requirements or cumulative financial requirements under the regulations. Quantitative treatment limitations are limitations that are expressed as a numerical value, such as annual, episode, and lifetime day and visit limitations. Cumulative quantitative treatment limitations are quantitative treatment limitations that determine whether or to what extent benefits are provided based on accumulated amounts, such as annual or lifetime limits on doctor visits or days in the hospital. If a plan or coverage imposes cumulative financial requirements or cumulative quantitative treatment limitations, the regulations do not allow the amounts to be accumulated separately for mental health or SUD benefits in a classification separately from any cumulative financial requirements or cumulative quantitative treatment limitations established for medical/surgical benefits in the same classification. For example, if a plan provides for a $500 deductible before it will pay benefits for office visits, it must accumulate the combined total of the cost of office visits for medical/surgical and mental health/sud towards the $500 deductible. It is not permitted to, for example, provide for a $250 deductible for medical/surgical office visits and a separate $250 deductible for mental health/sud office visits. If a plan or issuer imposes a financial requirement or quantitative treatment limitation, other than a cumulative financial requirement or cumulative treatment limitation, on mental health/sud benefits in any classification, that requirement or limitation must not be more restrictive than the predominant financial requirement or quantitative treatment limitation that applies to substantially all medical/surgical benefits in the same classification. For this purpose, substantially all is defined to mean 2/3 of the medical/surgi- 10 Life, Health, Disability and ERISA April 2017

cal benefits and predominant is defined to mean that more than one-half of the medical/surgical benefits in the classification are subject to the financial requirement or quantitative treatment limitation. The regulations provide detailed mathematical tests for testing financial requirements and quantitative limitations for parity. 2. Non-Quantitative Treatment Limitations Treatment limitations that are not expressed numerically are non-quantitative treatment limitations (NQTLs). Many of the difficult issues and controversies that have arisen with the respect to the regulations involve NQTLs. Examples of NQTLs provided in the regulations include medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or based on whether the treatment is experimental or investigative; formulary design for prescription drugs;, network tier design (for plans with multiple tiers); standards for provider admission to participate in a network, including reimbursement rates; plan methods for determining usual, customary, and reasonable charges; refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is not effective; exclusions based on failure to complete a course of treatment; and restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits for services provided under the plan or coverage. Since NQTLs cannot be tested mathematically, the regulations prescribe a separate standard for determining whether the NQTLs satisfy parity. Specifically, the regulations require that, if any NQTL is imposed on mental health/sud benefits in a classification, under the terms of the plan (or health insurance coverage) as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the nonquantitative treatment limitation to mental health or substance use disorder benefits in the classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to medical/surgical benefits in the classification. Thus, it is important for the plan to document the basis for the NQTL. It also is not enough for the standards applied to be nondiscriminatory on their face; they must also be applied in a manner that is not more stringent for mental health/sud benefits than for medical/surgical benefits. D. Requirements for 2% Cost Increase Exemption If a plan wishes to take advantage of the 2% cost exemption under the MHPAEA for a plan year, it must comply with the requirements of the MHPAEA for the preceding plan year (regardless of how much compliance costs). After it has complied for at least 6 months, the plan must have the increase in costs estimated by a licensed actuary who is a member in good standing of the American Academy of Actuaries. The actuary must apply the formula specified in the regulations. If the plan meets the 2% threshold, it must send a notice containing the information specified in the regulations to participants, beneficiaries, and federal and state agencies. The plan can satisfy the requirement to provide a notice to participants and beneficiaries by providing a summary of material modifications in accordance with ERISA. If the plan satisfies the requirements in the regulations, it is exempt from the parity requirement in the following plan year. However, the exemption only lasts for one year and, to claim it again, the plan must again comply with the MHPAEA for at least one plan year. For example, if a plan has a calendar year plan year and it wishes to claim the cost exemption for 2018, it must comply with the MHPAEA in 2017 and obtain the actuary s report and provide the required notices in that year. If it meets all the requirements, the plan will be exempt from the MHPAEA in 2018. However, the exemption expires at the end of 2018 and, to claim it again, the plan must comply with the MHPAEA for 2019. If it satisfies all the requirements for exemption in 2019, it can claim the exemption for 2020 and so on. Behavioral Health Claims and Mental Health Parity Tawshunsky 11

This alternating year approach may make it impractical for many plans to utilize the exemption even if they meet the 2% threshold. E. Disclosure Requirements The criteria for medical necessity determinations with respect to mental health/sud benefits must be made available by the plan administrator or health insurance issuer to any current or potential participant, beneficiary, or contracting provider upon request in accordance with regulations. In addition, plans must comply with the disclosure requirements under ERISA, including providing explanations for any denial of benefits and making any instruments under which the plan is governed available on request. Among the instruments that must be made available is information about the processes, strategies, evidentiary standards, and other factors used to apply NQTLs. Although most of the disclosure requirements with respect to the MHPAEA are governed by ERISA, there has been a considerable amount of confusion about the scope of required disclosures, particularly with respect to NQTLs. In Part 34 of the FAQs under the ACA, available at www.dol.gov/sites/default/files/ebsa/ about-ebsa/our-activities/resource-center/faqs/aca-part-34.pdf, the departments requested further comments on how to improve and clarify the disclosure requirements, including whether model forms would be helpful. Section 13001(b) of the 21 st Century Cures Act specifically directs the three departments to provide further guidance to assist plans and issuers in complying with the disclosure requirements. IV. Enforcement and Litigation Under the MHPAEA A. Enforcement In fiscal year 2016, the Department of Labor conducted 191 investigations of plans subject to the MHPAEA and cited 44 violations in those plans. United States Department of Labor, Employee Benefit Security Administration, FY 2016 MHPAEA Enforcement, p. 1, available at www.dol.gov/sites/default/files/ebsa/ about-ebsa/our-activities/resource-center/fact-sheets/mhpaea-enforcement-2016.pdf. B. Litigation There have been very few reported cases to this point that have ruled on substantive claims under MHPAEA. In plans subject to ERISA, both the Department of Labor and private litigants have a right of action to challenge violations of MHPAEA. It does not appear that the Labor Department has filed any lawsuits based on MHPAEA to this point. Some private MHPAEA lawsuits against plans subject to ERISA have involved a refusal to cover residential treatment for mental health/sud. Compare Danny P. v. Catholic Health Initiatives, 2016 U.S. Dist. LEXIS 85654 (W.D. Wash.) (although failure to cover residential treatment for mental health would violate final MHPAEA regulations, it did not violate interim final regulations, which were in effect at the time) with Craft v. Health Care Serv. Corp., 84 F. Supp. 3d 748 (N.D. Ill. 2015) (denying motion to dismiss MHPAEA claim based on denial of residential mental health treatment although the claim arose while the interim final regulations were in effect). At least one court has ruled that there is no private right of action for alleged violations of MHPAEA in the administration of an individual insurance policy, which is not subject to ERISA. See Marlena Mills v. Bluecross Blueshield of Tenn., Inc., 2017 U.S. Dist. LEXIS 2730 (E.D. Tenn.). 12 Life, Health, Disability and ERISA April 2017

V. Departments of Labor and HHS Red Flags for Potential Violations As noted above, many of the potential violations of the MHPAEA arise with respect to NQTLs. The Departments of Labor and HHS issued a document in 2016 that lists provisions in plans that raise red flags as to potential violations. This document is likely to help guide the Departments enforcement actions and it was specifically referenced by section 13001 of the 21 st Century Cures Act. This list of provisions can also be useful in conducting a compliance check for your plan. The document is available at www.dol.gov/sites/default/files/ ebsa/laws-and-regulations/laws/mental-health-parity/warning-signs-plan-or-policy-nqtls-that-require-additional-analysis-to-determine-mhpaea-compliance.pdf. Behavioral Health Claims and Mental Health Parity Tawshunsky 13