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Summary: In the wake of the mental health crisis exacerbated by the COVID-19 pandemic and spotlighted in a recent Surgeon General advisory on loneliness and isolation, federal agencies have released proposed rules to reinforce and bolster the Mental Health Parity and Addiction Equity Act (MHPAEA), and improve overall mental health benefits offered in group health plans.
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, 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. 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:
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:
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.
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.
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:
The Departments also posted a Technical Release for public comments 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.
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, most employers sponsoring group health plans will generally rely on the following plan service providers to ensure compliance with the new rules, once finalized:
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 firstname.lastname@example.org.
 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.
 NQTLs are generally non-numerical requirements that limit the scope or duration of benefits.
 45 C.F.R. § 146.136(g).
 The Departments also released the longer MHPAEA Comparative Analysis Report to Congress, July 2023 accompanying these proposed rules.
 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).
 Public comments with respect to the Technical Release must be emailed to email@example.com and received by October 2, 2023.
 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.