Background

MHPAEA requires plans that provide benefits for mental health and substance use disorder (SUD) benefits to offer those benefits in parity with medical/surgical benefits.

Under the recent amendments to MHPAEA, sponsors of group health plans are required to perform and document comparative analyses of the design and application of nonquantitative treatment limitations (NQTLs) to mental health and SUD benefits compared to medical/surgical benefits. (An NQTL is generally a limitation on the scope or duration of benefits for treatment.) For a full discussion of the new requirements, see our January 14, 2021 insight.

The amendments to MHPAEA became applicable on February 10, 2021. Therefore, plan sponsors now must be prepared to provide certain information related to the analyses of NQTLs to the DOL or HHS, upon request.

Guidance on performing analyses

In the new FAQs, the Departments clarify that a general statement of compliance, coupled with a conclusory reference to broadly stated processes, strategies, evidentiary standards or other factors related to NQTLs is insufficient to fulfill the new comparative analysis requirement. The Departments point to the DOL’s MHPAEA Self-Compliance Tool as a source of guidance related to requirements for NQTLs, including a process for analyzing whether a particular NQTL meets those requirements.

The FAQs provide examples of reasons why the Departments might conclude that documentation of comparative analyses of NQTLs is insufficiently specific and detailed. In addition, the Departments clarify that plan sponsors should be prepared to make available documents that support the analysis and conclusions of their NQTL comparative analyses. For example, they note:

[I]f comparative analyses reference studies, testing, claims data, reports, or other considerations in defining or applying factors (such as meeting minutes or reports showing how those considerations were applied), then the plan or issuer should be prepared to provide copies of all those items.

The FAQs do not provide an exhaustive list of NQTLs regarding which the Departments may request the comparative analysis. The Departments note that in the instance of a specific complaint, they may request information related to the NQTL in question, such as the comparative analysis related to prior authorization. However, the Departments remind plan sponsors that, under the amendments to MHPAEA, the DOL or HHS may also request NQTL comparative analyses in any instance deemed appropriate.

The Departments plan to reach out to stakeholders to determine what additional guidance may be needed.

Enforcement efforts continuing

The FAQs reinforce the need to perform and document comparative analyses for all NQTLs imposed. They also note that, in the near term, the DOL expects to focus its enforcement efforts on:

• Prior authorization requirements
• Concurrent review requirements
• Standards for provider admission to participate in a network (including reimbursement rates)
• Out-of-network reimbursement rates

The FAQs emphasize the consequences of failure to satisfy the comparative analysis requirements. Notably, if a plan sponsor fails to achieve compliance during a 45-day correction action period, the plan will then have seven days to notify covered individuals that the plan is not in compliance.

The FAQs highlight that a participant, beneficiary or enrollee (or their authorized representative) or a state regulator, may request an NQTL comparative analysis.

Plan sponsor considerations

The FAQs demonstrate the Departments’ expectation that plan sponsors are making immediate efforts to comply with the law. The FAQs do not suggest any grace period for compliance pending further guidance from the Departments and do not limit the scope of NQTLs for which the comparative analysis must be developed.

Plan sponsors will need to perform and document NQTL comparative analyses for all NQTLs applied under a plan. For plans with one or more third-party administrators, this will require coordination to confirm and collect information relevant to the analyses.