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On July 25, 2023, the U.S. Departments of Treasury, Labor, and Health and Human Services (the “Departments”) released proposed rules on the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), ensuring that health plans provide coverage for mental health and substance use disorder treatments (such as those for anxiety) at the same level as physical health care coverage (such as medical and surgical benefits related to heart disease or diabetes).
Specifically, these proposed regulations:
- Propose new standards for determining network composition and out-of-network reimbursement rates
- Sunset the ability for non-federal government plans to opt out of federal parity requirements
- Codify standards for non-quantitative treatment limitations (NQTLs) requirements, such as medical management techniques like prior authorizations
- Require that health plans acknowledge and address any differences in access to mental health and substance use disorder benefits from medical or surgical benefits
- Request feedback on proposed data requirements related to a health plan’s NQTLs and network composition
Once these proposed regulations are published in the Federal Register, the agencies will accept comments for 60 days.
When the MHPAEA was amended by the Consolidated Appropriations Act, 2021 (CAA), a provision was added to the law, requiring health plans and issuers to document comparative analyses of both the design and application of their NQTLs. Health plans and issuers must then provide these analyses to the Departments and any applicable state agency, upon request.
The Secretaries of the Departments must then report these results to Congress annually, known as the MHPAEA Comparative Analysis Report to Congress (Report). A Report has been submitted for both 2022 and 2023, satisfying the CAA’s requirements.
Among other things, these Reports address MHPAEA enforcement priorities and activities. Most recently, the 2023 Report explicitly stated that mental health parity enforcement is a top priority for the Employee Benefits Security Administration (EBSA), the employee benefits enforcement arm of the U.S. Department of Labor (DOL). Specifically, in its 2023 Report, the EBSA has announced that it will devote almost 25 percent of its enforcement work to MHPAEA NQTLs.
Over the past year, the EBSA increased staff specialization in its dedicated NQTL Task Force, developed new investigative tools specifically for MHPAEA investigations as well as hired and consulted with subject matter experts on mental health and substance use disorder (MH/SUD) diagnoses, treatments, review processes, and certain types of NQTLs.
Bracing for yet another regulatory responsibility, employers offering group health plans are responsible for ensuring that their health plan complies with the MHPAEA, including these newly proposed regulations.
Employers should keep these best practices in mind:
- Review the MHPAEA Self-Compliance Tool from the DOL annually, helping you navigate your legal responsibilities.
- Discuss the proposed regulations with your broker and third-party administrator, ensuring compliance with the MHPAEA comparative analyses rules.
- Consider whether you need to hire a qualified consultant to prepare your comparative analyses if your third-party administrator does not prepare the report (or only prepares part of the report).
- Consult with legal counsel if you’ve identified any MHPAEA concerns that may lead to non-compliance.
This information has been prepared for UBA by Fisher & Phillips LLP. It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.
