Departments issue proposed regulations, guidance on mental health parity

On July 25, the U.S. departments of Treasury, Labor, and Health and Human Services released several pieces of guidance on the Mental Health Parity and Addiction Equity Act (MHPAEA).

The following items were issued:

• Proposed Regulations. The proposed regulations amend the 2013 final MHPAEA regulations and implement the nonquantitative treatment limitation (NQTL) comparative analyses requirements under MHPAEA, added by the Consolidated Appropriations Act, 2021 (CAA). Comments on the proposed regulations must be submitted within 60 days of their publication in the Federal Register. The comment period ends October 2, 2023. In brief, the proposed regulations:
  • Amend the existing NQTL standard to prevent group health plans from using NQTLs to place greater limits on access to mental health (MH) and substance use disorder (SUD) benefits as compared with medical/surgical (M/S) benefits
  • Require group health plans to collect and evaluate relevant NQTL operational data in a manner reasonably designed to assess the impact of NQTLs on access to MH/SUD benefits and M/S benefits
  • Focus on network composition and adequacy, including carrier networks, third-party administrator networks and directly contracted networks
  • Apply the substantially all and predominant rules that apply to quantitative treatment limitations and financial limitations (QTLs) under a group health plan to NQTLs as well
  • Provide new NQTL examples to clarify and illustrate the protections of MHPAEA
  • Set forth content requirements for NQTL comparative analyses and specify how group health plans must make these comparative analyses available to the departments, applicable state authorities and participants (and their beneficiaries)
  • Solicit comments on whether coverage of MH/SUD benefits can be improved through other federal laws
  • Amend existing regulations to implement the sunset provision for self-funded, non-federal governmental plan elections to opt out of compliance with MHPAEA, as adopted by the Consolidated Appropriations Act, 2023
• Technical Release. This guidance sets out principles and seeks public comment to inform future guidance on the requirement in the proposed regulations that group health plans collect and evaluate certain data to assess the impact of NQTLs on access to MH/SUD benefits and M/S benefits. In addition, public comment is requested on the departments’ intention to create an enforcement safe harbor with respect to NQTLs related to network composition for group health plans that meet or exceed specific data-based standards. Comments must be submitted by October 2, 2023. WTW is aware that several employer business groups are planning to submit comments.
• 2023 MHPAEA Report to Congress. The report describes the departments’ recent enforcement efforts related to the CAA’s NQTL comparative analyses and provides a list of common deficiencies in NQTL comparative analyses and examples of corrections. As required by CAA, the report identifies by name the group health plans and health insurance issuers receiving a final determination of noncompliance and notes that in the second year of CAA NQTL implementation, the departments have not seen much improvement in the sufficiency of the initial comparative analyses received by the Department of Labor.
• The Fiscal Year 2022 MHPAEA Enforcement Fact Sheet. This annual document summarizes the departments’ closed investigations (on not only NQTLs but all MHPAEA topics) and public inquiries related to MHPAEA during fiscal year 2022 to better inform the public of the departments’ enforcement of MHPAEA.
• MHPAEA Guidance Compendium. This is a comprehensive resource listing guidance the departments have released on mental health parity.
• Fact sheet and news release. A White House fact sheet and department news release were also issued on the new guidance.

Going forward

The MHPAEA guidance is extensive; however, the proposed regulations will not take effect until after final regulations are issued, and no earlier than the first day of the first plan year beginning on or after January 1, 2025. In the meantime, employers should consider working with their consultants to continue to conduct required MHPAEA testing (including the CAA’s NQTL comparative analysis requirement), determine compliance with MHPAEA and make any group health plan amendments necessary to reflect that compliance.