The DOL, HHS, and Treasury Department (tri-agencies) released a proposed rule and technical release earlier this week focused on mental health parity. While the proposed regulations do not make any sweeping changes to fiduciary responsibility, they do require plans and issuers to collect and evaluate relevant data to assess the impact of NQTLs on parity.

For context, the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) created standards for the financial requirements and treatment limitations that a group health plan or group health plan issuer may impose on mental health and substance use disorder (MHSUD) benefits. MHPAEA established those financial requirements (such as copayments, coinsurance, etc.) and treatment limitations (such as limits on the number of outpatient visits or prior authorization requirements) cannot be more restrictive than those that apply to medical and surgical benefits. Regarding financial requirements or quantitative treatment limitations (such as the number of inpatient days covered), a plan cannot impose a requirement or limitation on MHSUD benefits that is more restrictive than what is imposed on two-thirds of the medical and surgical benefits in the same classification.

The Consolidated Appropriations Act of 2021 (CAA) mandated that employers offering medical, surgical, and mental health and substance use disorder coverage provide comparative analyses and relevant supporting documentation demonstrating compliance with mental health parity requirements to the Department of Labor upon request. Both fully insured and self-funded ERISA plan sponsors are required to comply with the quantitative treatment limits imposed by the MHPAEA. Complying with the CAA mandates and the non-quantitative treatment limits (NQTL) reporting is challenging for many employers, who, because of their size, must rely on their intermediaries such as third-party administrators to monitor and comply with network adequacy requirements for access to mental and behavioral healthcare.

The proposed rules issued this week aim to prevent plans and issuers from using NQTLs to place greater limits on access to MHSUD benefits as compared to medical and surgical benefits. As part of these changes, these proposed rules would require plans and issuers to collect and evaluate relevant data in a “manner reasonably designed to assess the impact of NQTLs on access to mental health and substance use disorder benefits and medical/surgical benefits.”

Regarding network composition, the tri-agencies recognize that some plans and issuers use other related NQTLs, such as credentialing standards, to help ensure an adequate number of available providers as part of their standards. The administration is proposing to specifically include credentialing standards and procedures for ensuring the network includes an adequate number of each category of MHSUD facilities relative to the number of medical and surgical providers and facilities in the list of NQTLs to clarify that plans and issuers setting standards to participate in a network through the application of one or more NQTLs would be required to satisfy NQTL requirements. The tri-agencies are soliciting comments on the likely impacts, costs, and benefits of treating network composition as an NQTL for purposes of the regulation, as opposed to treating it merely as an outcome of other NQTLs.

Additionally, these proposed rules would set forth the content requirements for NQTL comparative analyses and specify how plans and issuers must make these comparative analyses available to the tri-agencies as well as to an applicable state authority, and participants, beneficiaries, and enrollees.

The proposed regulation would also implement the sunset provision for self-funded, non-Federal government plan elections to opt out of compliance with MHPAEA. Prior to the enactment of the Consolidated Appropriations Act of 2023 (passed at the end of 2022), self-funded plans could elect to opt out of the MHPAEA requirements; the law, however, made it so these plans must be compliant. The tri-agencies estimate about 200 additional plans will now need to comply. There is a carve-out specifically for certain collectively-bargained plans – those that are subject to multiple collective bargaining agreements of varying lengths that have a MHPAEA opt-out election in effect as of the date of enactment of the 2023 CAA (December 29, 2022), that expires on or after the date that is 180 days after the enactment of the law (June 27, 2023), may extend such election until the date on which the term of the last such agreement expires.

The technical release contains a request for information from stakeholders, like NABIP, on the best way to work with states to ensure MHPAEA compliance and solidify mental health access for Medicaid beneficiaries enrolled in privatized Medicaid health plans.

NABIP will be submitting comments to the administration in response to these draft regulations. Our association has stated in the past that enforcement of mental health parity results in unfair and burdensome compliance requirements for employers. In the event of a DOL request, employers often will need to work with legal counsel to identify treatment limitations and contact multiple providers to request information necessary to complete comparative analyses. This makes compliance particularly difficult for employers who already face other compliance requirements relating to the plans they sponsor for employees. In 2022, the tri-agencies released the first Annual Report to Congress on the Mental Health Parity and Addiction Equity Act. Out of the 216 NQTL analyses reviewed by DOL and 21 NQTL analyses reviewed by CMS, none were found to meet regulators’ expectations – highlighting the difficulty that plan sponsors have in their efforts to comply.

Source: National Association of Benefit and Insurance Professionals