The federal departments implementing the Mental Health Parity and Addiction Equity Act (MHPAEA) requires parity between medical/surgical benefits and mental health/substance use disorder (MH/SUD) benefits. Health plans must provide parity in quantitative financial requirements or treatment limits (e.g., cost sharing and day or visit limits).
Health plans must also provide parity in non-quantitative treatment limits (NQTLs), tools to manage MH/SUD benefits. Examples of NQTLs include medical management standards, formulary designs, step-therapy protocols, network admission standards and factors used in setting provider reimbursement methodologies.
The federal departments implementing MHPAEA — the Departments of Health and Human Services, Labor and Treasury (the Departments) — recently released guidance1 required under the 21st Century Cures Act.2 This Update summarizes the new guidance, most of which focuses on NQTLs.
The Department of Labor (DOL) has issued an updated self-compliance tool for MHPAEA compliance. It revises a version that has been in circulation since 2014 and pre-dated by earlier versions.
The tool includes a four-step test for analyzing compliance with the NQTL requirements. The tool also includes additional examples of NQTLs. Disclosure compliance tips are part of the tool.
The Departments issued 12 answers to frequently asked questions (FAQs) addressing various issues under MHPAEA. The FAQs are proposed and comments are requested by June 22, 2018.
The majority of the FAQs addressed the application of NQTLs in various contexts. For example, the FAQs address the need to ensure that plans that exclude coverage for experimental or investigative treatment apply the exclusion in the same manner for medical/surgical and mental health/substance use disorder claims; in particular, with respect to professionally recognized treatment guidelines and controlled randomized trials for Applied Behavioral Analysis (ABA) therapy used to treat Autism Spectrum Disorder.
In addition, the FAQs address application of dosage limits for prescription medications (e.g., buprenorphine used to treat opioid use) and differences in step therapy protocols as applied to mental health/substance use disorder benefits. The FAQs also clarify that excluding residential treatment for eating disorders is impermissible if the plan covers inpatient treatment outside of a hospital for medical/surgical conditions.
The FAQs also address disclosure requirements under MHPAEA. Generally, plans governed by the Employee Retirement Income Security Act that have a provider network must include a general description in the Summary Plan Description (SPD) and provide a copy of the list upon request. Most plans use websites for provider network lists. The FAQ would change current regulations and require that a network directory be provided in hard copy unless the DOL’s electronic disclosure requirements are met, meaning employees must have a computer and printer at their worksite. The proposed rule could require significant changes in disclosure for plans with employees who do not have a computer and printer at their worksite.
In addition, changes to the directory must be announced in a Summary of Material Modifications (SMM).
In June 2017, the Departments published a draft model form that participants, enrollees or their authorized representatives may (but are not required to) use to request information from a group health plan or insurer regarding mental health or substance use disorder benefits and compliance with MHPAEA. The Departments solicited comments with respect to the first proposed model form and have now issued a slightly revised draft model form.
Under MHPAEA, the DOL is required to provide a bi-annual report to Congress regarding MHPAEA implementation. The 2018 Report summarizes activities undertaken by the Departments since the last report was issued, including activities of the White House Opioid Commission3, stakeholder listening sessions and HHS’s launch of a MHPAEA web portal: www.parity.hhs.gov.
The Report gives a comprehensive overview of DOL audit activities, including common plan documents that may be requested and global corrective actions that may be pursued particularly in the case of systemic violations by prototype insurer or third-party administrator policies or practices. Most notably, the Report announces two pilot programs, one focused on the application of MHPAEA to coverage of the treatment of opioid use disorders, including coverage of FDA-approved medications to treat these disorders, and another on potential parity violations through the targeting and evaluation of NQTLs imposed by large behavioral health providers and insurers.
The materials issued by the Departments signal an ongoing commitment to vigorously enforce the requirements of MHPAEA. Plan sponsors that wish to look at their plan and MHPAEA compliance can use the self-compliance tool to examine their plan’s language and operations. In addition, while the FAQ guidance also provides insights with respect to the Departments’ interpretation of the law, the FAQs are proposed, providing opportunity for comment as to the practical implications of these interpretations.
Sibson can assist in drafting and providing any comments to the Departments regarding this recent proposed guidance. We can also work through the self-compliance tool with a plan sponsor to ensure that their MHPAEA compliance plans are up-to-date. Sibson works with trustees and their fund counsel on compliance issues and can assist plan sponsors in ensuring compliance with MHPAEA.
For more information about how this guidance may affect your plan, please contact your Sibson consultant or the Sibson office nearest you.
1 On April 23, 2018, the Department of Health and Human Services (HHS) issued its Action Plan for Enhanced Enforcement of Mental Health and Substance Use Disorder Coverage and the Departments jointly issued Proposed FAQs about Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act and a revised draft MHPAEA disclosure template. The Department of Labor (DOL) separately issued its 2018 Report to Congress, Pathway to Full Parity, its Fiscal Year 2017 MHPAEA Enforcement Fact Sheet and its 2018 MHPAEA Self-Compliance Tool.
2 The 21st Century Cures Act (Public Law 114-255), which was enacted in 2016, includes a number of requirements designed to improve compliance with MHPAEA. Specifically, the law called on the Departments to issue a compliance guide and additional clarifying guidance related to NQTLs, as well as to solicit feedback regarding how to improve the disclosure request process under MHPAEA. In addition, the Departments were directed to provide greater transparency in enforcement activities. Public Law 114-255 is available online at the Government Printing Office website. For more information about this law, see Sibson Consulting’s February 15, 2017 Update, “21st Century Cures Act Enhances Mental Health Parity Oversight and Creates New Small Employer Health Reimbursement Arrangement.”
3 The President’s Commission on Combating Drug Addiction and the Opioid Crisis was initiated through an Executive Order signed by the President on March 29, 2017. The Commission’s mission included identifying and describing federal funding used to combat drug addiction, identifying best practices for prevention and making recommendations to the President. Recommendations to inform the ongoing White House initiative were delivered in a Final Report on November 1, 2017.
Update is Sibson Consulting’s electronic newsletter summarizing compliance news. Update is for informational purposes only and should not be construed as legal advice. It is not intended to provide guidance on current laws or pending legislation. On all issues involving the interpretation or application of laws and regulations, plan sponsors should rely on their attorneys for legal advice.
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