The Pandemic Exacerbated Gaps in Mental Health Care Access, but State and Federal Enforcement of Parity Requirements Can Help Improve Coverage

The grief, stress, and isolation of the COVID-19 pandemic have brought about a greater need for mental health and substance use disorder (MH/SUD) services, testing an already-strained system of care. By late June 2020, 40 percent of adults in the United States reported having a mental health or substance use condition, including depression, anxiety, suicidal thoughts, and using substances to cope with the pressures of the pandemic. Younger adults and certain communities of color were more likely to report challenges with mental health and substance use. Their struggles continue with the ongoing pandemic, with almost 3 in 10 adults reporting symptoms of depression or anxiety in surveys conducted this fall.

At the same time, many have difficulty obtaining timely, affordable MH/SUD services. An analysis of data from 2013 to 2017 found substantial and growing disparities in use of out-of-network providers for behavioral health and substance use disorder services compared to other medical providers, suggesting barriers to access even for those with insurance. The disparities were even greater for services for children. More recently, a Government Accountability Office (GAO) study conducted during the pandemic found heightened demand for services and workforce shortages broadened the gap between the need for MH/SUD services and ready access to care.

Mental Health Parity Enforcement

The Mental Health Parity and Addiction Equity Act (MHPAEA) requires plans and insurers that cover MH/SUD services to cover those services in parity with other medical benefits. MHPAEA requires insurers and plans to ensure parity in financial requirements such as copayments and coinsurance, quantitative treatment limits (QTLs) such as day or visit limits, and non-quantitative treatment limits (NQTLs), or any non-quantitative limit on the scope and duration of coverage. NQTLs include medical necessity definitions and determinations, utilization management tools that may require a patient to try a lower cost drug or level of care before approving a costlier alternative, and the terms and conditions for allowing providers to join a network, including reimbursement rates. When plans and insurers impose NQT limits on MH/SUD services, it can be challenging for insurance regulators to assess their compliance with the parity rules. Yet these limits can pose significant barriers for enrollees who need to access care.

As with other federal laws, states are the primary enforcers of MHPAEA and federal regulators enforce the law where states fail or are unable to do so. In 2020, federal regulators reported enforcing MHPAEA in Missouri, Oklahoma, Texas, and Wyoming (although passage of legislation giving state regulators authority to enforce MHPAEA in Oklahoma and Missouri since that report may narrow this list). Additionally, the Department of Labor (DOL) is responsible for enforcing MHPAEA for group health plans, including self-funded plans that are beyond state regulators’ reach.

State Enforcement Action

A growing number of states have taken action recently to beef up enforcement of mental health parity requirements, including assessments of whether or not insurers are imposing greater NQTLs for MH/SUD services than they are for medical services. For example, states have begun to look at provider reimbursement rates, which federal MHPAEA regulations designate an NQTL. In 2020, the Massachusetts Attorney General reached agreements with seven companies that limited access to behavioral health services in several ways, including by reimbursing behavioral health providers at lower rates than they paid to medical providers. Similarly, New Hampshire regulators entered into compliance agreements with two insurers who were unable to justify paying lower rates for MH/SUD providers based on any factors or standards that would comply with MHPAEA.

Other states are establishing and enforcing stricter standards for insurers’ use of medical necessity definitions. For example, California is implementing new requirements under legislation passed last year strengthening MHPAEA enforcement. The new law requires insurers to base medical necessity decisions on generally accepted standards and to use the most recent criteria developed by medical professionals and experts.

Federal Enforcement Action

Recently, DOL was among a group of private sector and government entities that brought claims against UnitedHealthcare, which administers employer-sponsored health plans. They allege the company failed to comply with MHPAEA by reimbursing out-of-network behavioral health providers at lower rates than they paid to out-of-network medical or surgical providers and for subjecting mental health services to stricter utilization review. In a settlement, UnitedHealthcare has agreed to pay the plaintiffs more than $15.6 million.

New Tools for State and Federal Enforcement Efforts

The UnitedHealthcare investigation garnered headlines, but most DOL investigation reports are under the radar. It received little attention, but in 2020 DOL closed investigations of 127 health plans subject to MHPAEA and found eight MHPAEA violations, including two NQTL violations, in investigations involving four self-funded plans. Although DOL doesn’t name the plans or the specific violations, the recently enacted Consolidated Appropriations Act (CAA) gave DOL and state regulators new tools and responsibilities to enforce MHPEA, including procedures that promote greater transparency about noncompliant plans. The new law also requires health plans and insurers covering MH/SUD services to prepare comparative analyses of applicable NQTLs, and make the analyses available to DOL and state regulators upon request. DOL must request and audit the NQTL analyses of at least twenty group health plans each year, and report annually on audits that identify noncompliant plans as well as the corrective actions the plans must take to come into compliance. The Centers for Medicare and Medicaid Services (CMS) must similarly request and audit the NQTL analyses for at least 20 insurers in states where the federal agency directly enforces MHPAEA, and for non-federal governmental plans.

The CAA also requires DOL to issue additional guidance on NQTL enforcement that will, among other things, give examples of methods for determining the “appropriate types” of NQTLs for MH/SUD and medical/surgical benefits. This follows DOL’s update to the Self-Compliance Tool that group health plans and insurers are encouraged to use when assessing their coverage for compliance with MHPAEA, including NQTL analyses. And a proposed rule for the No Surprises Act would give federal regulators authority to conduct random and targeted investigations of MHPAEA compliance.


The COVID-19 pandemic has taken a significant toll on our health and wellbeing, and MH/SUD services are a critical resource, if not a lifeline, for many of us. One of the obstacles consumers face when seeking care is disparate coverage of MH/SUD. Looking ahead, expanded enforcement authority and forthcoming federal guidance have the potential to improve MHPAEA compliance by making it easier for health plans and insurers to design coverage that meets parity and for state and federal regulators to enforce the law. These reforms, if fully realized, could help to deliver the promise of mental health parity; as recent enforcement actions show, there’s still a long way to go.

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The opinions expressed here are solely those of the individual blog post authors and do not represent the views of Georgetown University, the Center on Health Insurance Reforms, any organization that the author is affiliated with, or the opinions of any other author who publishes on this blog.