A Look at the Proposed Joint Regulations to Implement MHPAEA and NQTL Requirements

Three federal agencies – the Department of Labor (DOL), the Department of Treasury (Treasury), and the Department of Health & Human Services (HHS) – released joint proposed rules designed to amend existing rules under the Mental Health Parity and Addiction Equity Act (MHPAEA). The proposed rules also fulfill the mandate of the Consolidated Appropriations Act, 2021 (CAA, 2021) to implement nonquantitative treatment limitation (NQTL) comparative analysis requirements on health plans.

The proposed rules add and modify various definitions used in the MHPAEA, including “medical/surgical,” “mental health,” and “substance use disorder.” Eating disorders and autism spectrum disorders have been added as mental health conditions. The proposed rules also clarify and newly define several other terms related to developing sufficient NQTL analyses. The definition of “treatment limitation” is revised to reflect that the illustrative list of NQTLs is not exhaustive and that a treatment limitation does not equate to completely excluding all benefits for a particular condition.

Furthermore, the proposed rules add more requirements for plans and insurers applying NQTLs to mental health and substance use disorder (MH/SUD) benefits. Although some narrow exceptions exist, the proposed rules allow for the imposition of an NQTL only if the following three conditions are true:

  • The limitation is no more restrictive as applied to MH/SUD benefits than to medical/surgical benefits;
  • The plan or insurer satisfies requirements related to the design and application of the NQTL; and
  • The plan or insurer collects, evaluates, and considers the impact of relevant data on access to MH/SUD benefits relative to access to medical/surgical benefits and takes reasonable action to address any material differences.

The proposed rules also provide extensive guidance on the three conditions listed above. Some examples of common NQTLs include prior authorization, provider network admission standards, and limitations on residential treatment.

Under the proposed rules, plans and insurers would be required to conduct meaningful NQTL analyses, provide additional details on the form and content of those analyses, and provide the results of those analyses to plan participants, beneficiaries, and state and federal government agencies. The analyses would be based on the 2020 MHPAEA Self-Compliance Tool and the CAA, 2021. Any processes, strategies, evidentiary standards, or factors used to design and apply NQTLs to MH/SUD benefits must be comparable to or applied no more strictly than those used concerning medical/surgical benefits.

Along with the proposed regulations, the Employee Benefits Security Administration (EBSA) issued a Technical Release soliciting public comments on future guidance addressing the data collection and evaluation used to analyze the adequacy of the plan’s network composition. The types of data that may be required, as outlined in the release, include:

  • Out-of-network utilization of some inpatient and outpatient services during the previous two calendar years;
  • The percentage of in-network providers actively submitting claims for MH/SUD services as compared to medical/surgical services;
  • Time and distance standards reflecting practical network availability based on services offered and geographic location; and
  • Reimbursement rates for certain in-network and out-of-network services.

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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