Insights

On January 17, 2025, the Departments of Labor, Health and Human Services, and Treasury (the “Tri-Agencies”) released the 2024 Mental Health Parity and Addiction Equity Act (“MHPAEA”) Report to Congress (the “Report”). The Report is the third report made by the Tri-Agencies to Congress in accordance with the mandate set forth in the 2021 Consolidated Appropriations Act (“CAA”). The CAA requires that, each year starting in 2021, the Tri-Agencies submit a report to Congress summarizing their activity in the prior year to collect comparative analyses from plans and issuers and any findings made with respect to noncompliance with MHPAEA.[1] Under the CAA, the Report is due by October 1 of each year. This year’s version was published on the last working day of the Biden Administration.

On Monday, September 8, 2024, the United States Department of the Treasury, Department of Labor, and Department of Health and Human Services (collectively, the “Tri-Agencies”) issued a final rule (“the Final Rule”) implementing new regulations applicable to nonquantitative treatment limitations (“NQTLs”) under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (“MHPAEA”). The Final Rule codifies many of the requirements set forth in the (the “Proposed Rule”), while pulling back on some of the Tri-Agencies’ more controversial proposals. 

In the latest sign that federal enforcers remain focused on increasing antitrust enforcement, last Thursday, the Justice Department (DOJ), Federal Trade Commission (FTC) and the Department of Health and Human Services (HHS) revealed an online portal, HealthyCompetition.gov, to encourage the public to submit reports on potential anticompetitive and monopolistic conduct in the healthcare sector.  The initiative seeks to address concerns that such behavior may affect healthcare affordability and quality, and employee wages. 

On July 25, 2023, the U.S. Departments of Labor, Treasury, and Health and Human Services (the “Tri-Agencies”) released long awaited proposed regulations (the “Proposed Rule”) and a Technical Release, which together propose new requirements for comparative analyses of nonquantitative treatment limitations (“NQTL”) under the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”).  On the same day, the Tri-Agencies released their annual report to Congress on implementation of MHPAEA, as required under the Consolidated Appropriations Act, 2021 (“CAA 2021”). 

Now that the Tri-agencies have drawn back the curtains to reveal some of the inner workings of their developing Mental Health Parity and Addiction Equity Act (MHPAEA) comparative analysis enforcement efforts, the question is: What’s next?

On January 25, 2022, the Departments of Labor, Health and Human Services (“HHS”), and the Treasury (the “Tri-agencies”) released their 2022 annual report to Congress on the Mental Health Parity and Addiction Equity Act (“MHPAEA”).

On September 30, 2021, the Departments of Health and Human Services (“HHS”), Labor, and Treasury, as well as the Office of Personnel Management (collectively, “the Departments”), issued a second interim final rulemaking implementing provisions of the No Surprises Act passed by Congress earlier this year. 

The American Rescue Plan Act of 2021, or COVID-19 bill, was signed into law by President Biden on March 11, 2021.  It passed the U.S. House originally on February 27, 2021, by a vote of 219 to 212, was amended by and passed the U.S. Senate on March 6, 2021, by a vote of 50 to 49, and the amended and reconciled bill was passed by the U.S. House on March 10, 2021 by a vote of 220 to 211.  The 242-page bill provides a total of $1.9 trillion in economic stimulus related to the COVID-19 crisis and includes stimulus checks for Americans, renewed unemployment benefits, employment related provisions, tax related provisions, education related provisions, child benefits related provisions and provisions related to the COVID-19 pandemic at large and health care in general.  The purpose of this Client Alert is to provide a summary of the health care provisions of the new law.

Mental health parity compliance remains a focus of both state and federal regulators. As federal compliance guidance continues to evolve, states are taking more direct action to delineate specific compliance programs for health plans. California and Pennsylvania each recently enacted mental health parity legislation to increase compliance requirements—and burdens—for health plans and issuers.

On September 30, CMS issued proposed guidance relating to the government’s long overdue payment of amounts owed under the ACA’s “risk corridors” program for purposes of calculating health plans’ medical loss ratios (MLR). By way of background, health plans in the individual and small group markets must report premium and expense data after each benefit year and achieve a minimum 80% MLR. That is, 80 cents of every dollar of premium revenue (less state and federal taxes and licensing or regulatory fees) must be spent on clinical services or activities that improve health care quality. Health plans that do not meet the minimum MLR are required to issue rebates to policyholders in the amount of the difference.

On July 8, 2020, the New York Department of Financial Services published Proposed Insurance Regulation 218 (11 NYCRR Part 230) in the State Register. If finalized as proposed, the regulation would become amongst the most draconian mental health parity compliance regimes in the country. The proposed requirements impose significantly more stringent standards on New York fully-insured plans than the federal rules. Other provisions appear in conflict with longstanding federal standards for how regulators and plans evaluate compliance with the Mental Health Parity and Addiction Equity Act (“MHPAEA”). The following examples are among the more burdensome requirements in the proposed regulation:

This summary of key lawsuits affecting managed care is provided by the Health Care Group of Crowell & Moring. If you have questions or need assistance on managed care law matters, please contact Chris Flynn, Peter Roan, or any member of the Health Care Group.

The health care industry has seen more than its share of defamation and intellectual property infringement cases. Many of these cases involve unknown persons hiding behind the anonymity of the internet and invoking the First Amendment to remain anonymous. All is not lost, however, for the victims of injurious speech and conduct by anonymous persons. As demonstrated by the following four health care cases, the First Amendment anonymity defense is surmountable.

In Moda Health Plan, Inc. v. U.S. (Feb. 9, 2017), the Court of Federal Claims granted summary judgment in favor of a health insurer in a lawsuit seeking to recover "risk corridors" payments pursuant to §1342 of the Affordable Care Act, deciding on the merits that (i) the plaintiff was entitled to full payments owed to it under the statutory formula set forth in the ACA, (ii) Congress did not intend the risk corridors program to be budget-neutral, and (iii) later appropriations bills restricting HHS' access to the CMS Program Management Account for risk corridors payments did not repeal or amend this obligation to make full annual payments. In an important decision likely to reverberate throughout the individual insurance market, the Court stated that "the Government made a promise in the risk corridors program that it has yet to fill … [and] the Court directs the Government to fulfill that promise."

This summary of key lawsuits affecting managed care is provided by the Health Care Group of Crowell & Moring. If you have questions or need assistance on managed care law matters, please contact Chris Flynn, Peter Roan, or any member of the Health Care Group.

In Health Republic Insurance Co. v. U.S. (Jan. 10, 2017), the Court of Federal Claims (Court) rejected the Government’s motion to dismiss a lawsuit filed under the Tucker Act seeking to recover “risk corridors” payments pursuant to §1342 of the Affordable Care Act, holding that “HHS is required to make annual risk corridors payments to eligible qualified health plans” under the ACA, and that the “plaintiff’s claim for unpaid risk corridors payments is ripe for adjudication.” The Court’s decision was based on several factors, including the risk corridors program’s purpose of stabilizing insurance premiums in the ACA’s new and untested health insurance marketplace; notably, the Court held that even if the ACA were ambiguous and the court were to apply a Chevron deference analysis, HHS has interpreted the program to require annual payments, and the agency’s own actions (i.e., making partial annual payments) indicate it believes the program is annual in nature.

In Maine Community Health Options v. U.S. (Dec. 2, 2016) the CFC held that the “existence of separate, active cases” whose outcomes will impact the issues raised by a plaintiff fails to meet the Government’s burden to justify a stay of litigation under Federal Circuit precedent. Plaintiff Maine Community Health Options (represented by C&M) is one of 13 health insurers who have filed suit against the Government under the Tucker Act seeking to recover “risk corridors” payments pursuant to §1342 of the Affordable Care Act.

This summary of key lawsuits affecting managed care is provided by the Health Care Group of Crowell & Moring. If you have questions or need assistance on managed care law matters, please contact Chris Flynn, Peter Roan, or any member of the Health Care Group.

This summary of key lawsuits affecting managed care is provided by the Health Care Group of Crowell & Moring. If you have questions or need assistance on managed care law matters, please contact Chris Flynn, Peter Roan, or any member of the Health Care Group.

This summary of key lawsuits affecting managed care is provided by the Health Care Group of Crowell & Moring. If you have questions or need assistance on managed care law matters, please contact Chris Flynn, Peter Roan, or any member of the Health Care Group.