DOL and HHS Clarify Purpose of New MHPAEA Reporting Rules

As of February 10, 2021, group health plans are required to evaluate compliance with the existing rules governing nonquantitative treatment limitations (NQTLs) under the Consolidated Appropriations Act (CAA) and the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). 

The MHPAEA requires group health plans that apply NQTLs to mental health or substance use disorder (MH/SUD) benefits to ensure that the NQTLs are comparable to and applied no more stringently than the NQTLs applied to medical or surgical benefits (M/S). 

Under the CAA, plans are required to perform and document comparative analyses of the design and application of NQTLs. The comparative analyses must demonstrate that the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to MH/SUD benefits, as written and in operation, are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to medical or surgical benefits in the benefits classification.

On April 2, 2021, the Departments of Labor, Health and Human Services, and Treasury issued FAQs related to the implementation of the new reporting rules. The FAQs provide guidance and a MHPAEA Self-Compliance Tool to help plan administrators determine whether they are meeting the requirements for group health plans under ERISA as well as a series of compliance questions regarding MHPAEA requirements.

FAQ #2 specifies that, at a minimum, sufficient analyses must include a “robust” discussion of all of the following:

  1. A clear description of the specific NQTL, plan terms, and policies at issue. 
  2. Identification of the specific MH/SUD and medical/surgical benefits to which the NQTL applies within each benefit classification, and a clear statement as to which benefits identified are treated as MH/SUD and which are treated as medical/surgical. 
  3. Identification of any factors, evidentiary standards or sources, or strategies or processes considered in the design or application of the NQTL and in determining which benefits, including both MH/SUD benefits and medical/surgical benefits, are subject to the NQTL. Analyses should explain whether any factors were given more weight than others and the reason(s) for doing so, including an evaluation of any specific data used in the determination. 
  4. To the extent the plan or issuer defines any of the factors, evidentiary standards, strategies, or processes in a quantitative manner, it must include the precise definitions used and any supporting sources. 
  5. The analyses, as documented, should explain whether there is any variation in the application of a guideline or standard used by the plan or issuer between MH/SUD and medical/surgical benefits and, if so, describe the process and factors used for establishing that variation. 
  6. If the application of the NQTL turns on specific decisions in administration of the benefits, the plan or issuer should identify the nature of the decisions, the decision maker(s), the timing of the decisions, and the qualifications of the decision maker(s). 
  7. If the plan or issuer’s analyses rely upon any experts, the analyses, as documented, should include an assessment of each expert’s qualifications and the extent to which the plan or issuer ultimately relied upon each expert’s evaluations in setting recommendations regarding both MH/SUD and medical/surgical benefits. 
  8. A reasoned discussion of the plan’s or issuer’s findings and conclusions as to the comparability of the processes, strategies, evidentiary standards, factors, and sources identified above within each affected classification, and their relative stringency, both as applied and as written. This discussion should include citations to any specific evidence considered and any results of analyses indicating that the plan or coverage is or is not in compliance with MHPAEA. 
  9. The date of the analyses and the name, title, and position of the person or persons who performed or participated in the comparative analyses.

In addition, the FAQs specify that the DOL expects to focus on the following NQTLs for enforcement in the near term:

  1. Prior authorization requirements for in-network and out-of-network inpatient services; 
  2. Concurrent review for in-network and out-of-network inpatient and outpatient services; 
  3. Standards for provider admission to participate in a network, including reimbursement rates; and 
  4. Out-of-network reimbursement rates (plan methods for determining usual, customary, and reasonable charges).

Group health plans are required to make compliance documentation available to the DOL, HHS, or applicable state authorities upon request. If a group health plan’s analysis does not demonstrate adequate compliance, the plan is provided with a 45-day correction period in which to become compliant by proposing certain actions or providing additional data. If the plan is still found to be noncompliant by the DOL, the plan must inform participants that the plan does not comply. 

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 678-439-6236.

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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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