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A benefits compliance attorney at NFP is warning employers to listen carefully to employees' complaints about access to care.
The U.S. Department of Labor's Employee Benefits Security Administration "is prioritizing removing barriers to accessing mental health and substance use disorder benefits," Benjamin Merry said last week, during a benefits webinar organized by NFP.
"They're digging into burdensome claims process, unjustified treatment exclusions, inaccurate provider lists and unreasonable limits on care," Merry added. "Employers can expect prior authorization, I think, to be a heavy focus. The same goes for medical necessity criteria and exclusions for experimental treatment."
EBSA has said it will focus on informal efforts to resolve problems, not formal investigations.
But Merry — who is now vice president of benefits compliance at NFP, and who worked at EBSA as a health law compliace specialist from 2023 to 2025, under both President Joe Biden and President Donald Trump — predicted that EBSA will still be active at addressing No Surprises Act claim disputes and employees' complaints about care access under the Mental Health Parity and Addiction Equity Act.
In cases where an employer's plan has violated the law in an exceptional way, EBSA could still launch a formal investigation, Merry said.
If a health insurer "doesn't really play ball with the investigation," EBSA could refer the insurer to the Internal Revenue Service and ask the IRS to consider imposing excise taxes, Merry said.
Federal law now requires parity in behavioral health "non-quantitative treatment limits," such as the rules for access to nutrition counseling for patients with diabetes and patients with anorexia.
Merry said one step an employer can take is to prepare an analysis showing that any behavioral health benefits it provides are comparable to the other health care benefits it providers.
Another step an employer should take is to listen, Merry said.
"Pay attention to employee complaints," he said. "I cannot stress this enough."
Employers should also have regular conversations with health insurers or plan administrators about mental health parity and the plan's benefits comparative analysis.
"It's the first thing the DOL is going to ask for if they audit your plan," Merry said. "If you don't have a comparative analysis, you're not going to be able to demonstrate that your plan is compliant."
The backdrop: EBSA talked about its interest in behavioral health parity in an enforcement priorities statement posted on the web in January and in an enforcement principles bulletin released last week.
Daniel Aronowitz, the assistant Labor secretary who serves as EBSA's administrator, testified at a House hearing last week that he has had personal experience with having claims for behavioral health care for his own children denied and hopes to promote behavioral health parity.
The Trump administration has given up on efforts to move forward with behavioral health parity regulations completed in 2024, while Biden was in office.
Lawmakers at the Aronowitz hearing questioned how well the Trump administration would really enforce the parity requirements.
The 2013 regulations: During the NFP webinar, Merry noted that parity regulations completed in 2013 are still in effect.
"And the departments also said that they would continue to enforce the statutory provisions," Merry said.
DOL and other federal agencies are working on new regulations to replace the 2024 parity regulations, and the result of that effort could provide more clarity on how DOL now wants employers to handle non-quantitative treatment limits, Merry said.
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