These rules are part of a comprehensive national strategy by the administration to improve and strengthen mental health parity requirements and ensure access to mental health and substance use disorder treatment.

The Departments of the Treasury, Labor and Health and Human Services (collectively, the Departments) issued the proposed rules in conjunction with a technical release. Comments on the proposed rules must be submitted to the DOL no later than October 17, 2023. (This reflects a 15-day extension of the original comment deadline. We updated this insight on September 20 to include this new information.)

Background

On December 27, 2020, Congress enacted the Consolidated Appropriations Act, 2021 (CAA), which amended MHPAEA, in part, to require group health plans and health insurers that offer both medical/surgical (M/S) benefits and mental health/substance use disorder (MH/SUD) benefits and impose NQTLs on MH/SUD benefits to perform and document comparative analyses of the design and application of their NQTLs. (We discussed these requirements in our January 14, 2021 insight, “New Law Strengthens Parity for Mental Health and SUD,” which includes examples of NQTLs.)

The comparative analysis requirements became effective on February 10, 2021. Plans and insurers are required to make their comparative analyses available to the Departments or applicable state authorities, upon request.

New proposed rules

On July 25, 2023, the Departments issued proposed rules, which, if finalized, would place additional requirements on plans and insurers for establishing parity under the MHPAEA.

The proposed rules, which would be effective for plan years beginning on or after January 1, 2025, would amend certain provisions of existing MHPAEA regulations to incorporate new and revised definitions of key terms, as well as specify additional steps that plans or insurers must take to meet their obligations under MHPAEA.

Notable provisions of the proposed rules include:

• New application of the substantially all/predominant test. Similar to current parity rules for quantitative treatment limitations, the proposed rules would require that a plan or insurer that provides both M/S benefits and MH/SUD benefits may not apply any NQTL to MH/SUD benefits in any classification that is more restrictive than the predominant NQTL of that type applies to substantially all M/S in the same classification. This requirement would have a significant impact on certain NQTLs, such as utilization review requirements.
• Data-collection requirements. Plans would be required to collect and evaluate outcomes data and take action to address material differences in access to MH/SUD benefits as compared to M/S benefits, with a specific focus on ensuring that there are not any material differences in access as a result of the application of network composition standards. The DOL Technical Release 2023-01P seeks comments related to network composition requirements.
• Meaningful benefit requirement. The proposed rules would specify that if a plan provides any benefits for a MH/SUD condition or disorder in any classification of benefits, the plan must provide meaningful benefits for treatment for that condition or disorder in each classification in which comparative M/S benefits are provided.
• Opt-out for governmental plans. Implements the sunset provision for self-funded, non-federal governmental plan elections to opt out of compliance with MHPAEA.
• New and expanded examples. These address more restrictive prior authorization and other medical management techniques for MH/SUD benefits, standards related to provider network admission standards for MH/SUD benefits, employee assistance plan exhaustion requirements and residential treatment exclusions.

New information about MHPAEA enforcement

In addition to the proposed rules, the Departments released the MHPAEA 2023 Comparative Analysis Report to Congress, along with a new fact sheet, that details the Departments’ fiscal year 2022 enforcement efforts.

Implications for plan sponsors

The proposed rules set forth new standards for imposing NQTLs as well as requiring additional data collection and evaluation requirements for compliant NQTL documented comparative analyses. Plan sponsors should evaluate the proposed rules and determine the impact on existing MHPAEA compliance efforts.

Plan sponsors that wish to comment on the proposal can do so on or before October 17, 2023.