Additional examples signal Departments’ increased expectations for plan sponsors

Numerous revised and additional examples are proposed in both the body and appendix of the tool. Some examples revisit issues addressed before but with greater specificity, such as:

• Room and board exclusions for mental health/substance use disorder (MH/SUD) residential treatment may violate MHPAEA when room and board charges for inpatient stays and skilled nursing facilities are covered by the plan.
• Making medication-assisted treatment (MAT) for opioid use disorder contingent upon availability of behavioral or psychosocial therapies or services (or upon the patient’s acceptance of such services) would generally be not be permissible.

Several examples provide new insights on the application of MHPAEA’s NQTL rules, such as:  

• Plan sponsors should be prepared to support Pharmacy & Therapeutics Committee deviations from clinical standards. The Departments will look for comparability in expertise across medical/surgical and MH/SUD committees, as well as comparable processes as to when the committee deviates from clinical standards.
• The tool provides information and resources about how the Departments will review parity in provider reimbursement rates. For example, if a plan pays Medicare reimbursement rates for MH/SUD and a higher rate for medical/surgical claims, this difference will be problematic. Plan sponsors should be prepared to explain any variants in reimbursement based on the nature of service, provider type, market dynamics, need and demand. The Departments propose a tool for comparing reimbursement rates to Medicare. Lower reimbursement for MH/SUD physicians for the same evaluation and management code may also be problematic.
• The Departments suggest ways to demonstrate comparability:
  • Providing internal quality control reports showing that the factors, evidentiary standards and processes with respect to MH/SUD and medical/ surgical benefits are comparable
  • Checking sample claims to see how the NQTL operates in practice
  • Developing summaries of research (e.g., clinical articles) considered in designing NQTLs for both MH/SUD and medical/surgical benefits and demonstrating that the research was similarly utilized for both MH/SUD and medical/surgical benefits
  • Using the National Association of Insurance Commissioners NQTL Chart as a resource for reviewing NQTLs for compliance.

In one example, the Departments indicate that if, for example, high cost is identified as a factor used in designing a prior authorization requirement, the threshold dollar amount at which prior authorization will be required for any service should also be identified, along with the data used to determine whether the benefit is high cost and how, if at all, the amount that is to be considered high cost is different for MH/SUD benefit as compared to medical/surgical benefits.

• The Departments suggest that plans and issuers attempt to address network adequacy, specifically shortages in medical/surgical specialist providers and reasonable patient wait times for appointments. Suggestions to address these challenges include adjusting provider admission standards through increased reimbursement rates and developing a process for accelerating enrollment of providers. To comply with the requirements of MHPAEA, plans and issuers must take measures that are comparable and no more stringent than those applied to medical/surgical providers to help ensure an adequate network of MH/SUD providers, even if ultimately there are disparate numbers of MH/SUD and medical/surgical providers in the plan’s network.
• Additional warning signs include prior authorization for MAT for opioid use disorder; denying all drug screening tests for those with SUD; or applying different medical necessity review requirements. These types of limitations raise flags and plan sponsors must be prepared to support how any such limit complies with MHPAEA.

The tool references a recent court case and warns plan sponsors that if internal guidelines result in plan administration being more restrictive than the terms of the plan document, it may be a violation of Part 4 of ERISA (which includes ERISA’s fiduciary provisions). The tool warns plan sponsors to be prepared to disclose medical necessity criteria.  

Departments call for internal parity compliance plans

The tool suggests that a best practice is for plan sponsors is to develop an internal compliance plan that covers:

• Training and education of claims reviewers, including anyone responsible on behalf of a plan or insurer, as well as education of participants and beneficiaries
• Retention of all documents that support plan activities, as required under ERISA (including electronic information)
• Internal monitoring and compliance reviews, including audits of samples of adverse benefit determinations, assessments of the application of medical necessity criteria, and reviews for completeness of information provided to claimants
• Prompt response and corrective action if noncompliance is detected, which may include retroactive relief and notices to affected participants and beneficiaries

Next steps for plan sponsors

The examples and suggestions in the proposed tool highlight the Departments’ expectations that plan sponsors will be performing MHPAEA assessments and carefully monitoring and documenting their parity compliance.

Many plans rely on third-party administrators and utilization-management companies to administer medical management processes that are NQTLs under MHPAEA. Plan sponsors will need to work closely with administrators to ensure parity compliance is being achieved and documented.