On July 25, 2023, the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury (collectively, the Departments) released new proposed rules to better ensure access to mental health and substance abuse disorder (MH/SUD) treatment for workers covered by employer-sponsored group health plans.
MHPAEA Background
MHPAEA, enacted in 2008, requires group health plans offering MH/SUD benefits to provide the same level of benefits for MH/SUD treatment and services that they do for medical/surgical care.[1] Opioid use disorder, eating disorders, autism spectrum disorder, anxiety, and depression, amongst many others, are all examples of conditions covered under MH/SUD benefits.
MHPAEA prevents group health plans providing MH/SUD benefits from imposing limits on those benefits that are more stringent than limits on medical/surgical benefits. This means any of the following requirements imposed on a plan’s MH/SUD benefits cannot be more restrictive than those applied to the plan’s medical and surgical benefits:
- Financial requirements — such as deductibles, co-payments, coinsurance, and out-of-pocket maximums
- Quantitative treatment limitations — such as number of treatments, visits, or days of coverage
- Non-quantitative treatment limitations (NQTLs)[2] — such as prior authorization requirements, step therapy, and standards for provider admission to participate in a network, including methodologies for determining reimbursement rates
MHPAEA requirements generally apply to both self-funded, fully insured, grandfathered, and non-grandfathered plans that offer MH/SUD benefits. The following group health plans are exempt from MHPAEA requirements:
- Self-funded plans sponsored by employers with 50 or fewer employees
- Plans offering only excepted benefits (e.g., vision or dental coverage)
- Retiree-only plans
- Plans that are exempt due to an increased cost (generally the increased cost incurred due to complying with the MHPAEA is at least 2% in the first plan year or at least 1% in any subsequent plan year)[3]
Small fully insured employer plans are generally required to comply with the MHPAEA by satisfying the essential health benefit requirements of the ACA.
The Consolidated Appropriations Act, 2021 (CAA, 2021), enacted on December 27, 2020, amended MHPAEA, to expressly require health plans subject to MHPAEA to conduct and document their comparative analyses of the design and application of NQTLs, and provide this analysis to the Departments (or an applicable state authority) upon request. This NQTL comparative analysis requirement went into effect on February 10, 2021.
Proposed Rules Highlights
The Departments released these proposed rules in response to an observed pattern where group and individual health plans are not complying with MHPAEA requirements, particularly the NQTL comparative analysis requirements. The Departments posted a MHPAEA 2022 Enforcement Fact Sheet in conjunction with the release of these new proposed rules to illustrate the pattern of noncompliance[4].
MPHAEA’s fundamental purpose is to ensure individuals have sufficient and appropriate access to MH/SUD benefits offered in health plans and that these benefits are not more restrictive or burdensome for individuals to access than the medical/surgical benefits offered under the same health plan. To that end, highlights of these new proposed rules include:
- Provide specific examples demonstrating that plans cannot use more restrictive prior authorization and other medical management techniques for MH/SUD benefits
- Provide standards related to network composition for MH/SUD benefits
- Provide factors to determine out-of-network reimbursement rates for MH/SUD providers
- Require plans to collect and evaluate outcomes data and take action to address material differences in access to MH/SUD benefits relative to medical/surgical benefits, specifically ensuring access to MH/SUD provider networks
- Codify the requirement for plans to conduct and document meaningful NQTL comparative analyses and provide them to the Departments (or an applicable state authority) upon request. This includes evaluating standards related to network composition[5], out-of-network reimbursement rates, and prior authorization NQTLs
- Implement the sunset provision for self-funded, non-Federal government plan elections to opt out of compliance with MHPAEA, in accordance with the Consolidated Appropriations Act, 2023 (Click here for a prior Risk Strategies article on this topic.)
- Provide clear guidance to plans on how plans can comply with MHPAEA requirements
The Departments also posted a Technical Release for public comments[6] to inform future guidance with respect to network composition-related NQTL data submissions and also to set standards for a potential MHPAEA enforcement safe harbor.
Impact to Employers
Since these are proposed rules, there is no immediate action for employers sponsoring group health plans. These proposed rules are subject to a 60-day public comment period before final rules will be released by the Departments.
On a practical level, and as acknowledged in the preamble to these proposed rules[7], most employers sponsoring group health plans will generally rely on the following plan service providers to ensure compliance with the new rules, once finalized:
- Insurance carriers for fully insured plans
- Third-party administrators (TPAs) for self-funded plans
- Managed behavioral health organizations (MBHOs) for both fully insured and self-funded plans
The release of these proposed rules signals a continued commitment by the Biden administration to tackling the mental health crisis and increased scrutiny on MHPAEA compliance and enforcement by the Departments. Plan sponsors are encouraged to confirm with their plan service providers that the required MHPAEA NQTL comparative analysis is being conducted, documented, and reflecting current plan terms, in accordance with the CAA 2021.
The Department of Labor provides a self-compliance tool link for further assistance and guidance.
Risk Strategies will continue to follow this development closely and provide updates when available. Reach out to your Risk Strategies representative with any questions or contact us directly at benefits@risk-strategies.com.
[1] While MHPAEA generally does not mandate coverage of MH/SUD benefits, plans that do offer these benefits must provide coverage at the same level as they do for medical/surgical benefits.
[2] NQTLs are generally non-numerical requirements that limit the scope or duration of benefits.
[3] 45 C.F.R. § 146.136(g).
[4] The Departments also released the longer MHPAEA Comparative Analysis Report to Congress, July 2023 accompanying these proposed rules.
[5] NQTL network composition data points would include, but would not be limited to, in-network and out-of-network utilization rates (including data related to provider claim submissions), network adequacy metrics (including time and distance data, and data on providers accepting new patients), and provider reimbursement rates (including as compared to billed charges).
[6] Public comments with respect to the Technical Release must be emailed to mhpaea.rfc.ebsa@dol.gov and received by October 2, 2023.
[7] Page 187-188 of the preamble to the proposed rules states that the Departments expect that carriers and TPAs would perform most of the work associated with the NQTL evaluations and comparative analysis since they maintain and hold the necessary data, and are in the best position to help plans with MHPAEA compliance at the lowest cost and greatest scale.
