As described in a recent blog post, the Consolidated Appropriations Act, 2021 amended the Mental Health Parity and Addiction Equity Act (MHPAEA) to require group health plans and health insurance issuers (collectively, “group health plans”) that impose non-quantitative treatment limitations (NQTLs) on mental health or substance use disorder (MH/SUD) benefits to perform and document comparative analyses, in order to demonstrate that such NQTLs comply with the requirements of the MHPAEA¹.  This requirement became effective on February 10, 2021, along with the requirement that a group health plan must provide the comparative analyses to the Department of Labor (DOL), Health and Human Services (HHS), or applicable State authority upon request.

The Consolidated Appropriations Act also directed the DOL, HHS, and the Treasury (together, the “Departments”) to issue additional guidance for group health plans, intended to clarify and provide examples of methods group health plans may implement to comply with the comparative analyses and disclosure obligations.

On April 2, 2021, the Departments issued this guidance, in the form of several FAQs addressing:

• What information should be included in a group health plan’s comparative analyses?
• What are some examples of insufficient responses to a request from the Departments?
• What other documents might the Departments request in support of a group health plan’s comparative analyses?
• What happens if a group health plan’s comparative analyses are determined by the Departments to be insufficient?
• Who else can request a group health plan’s comparative analyses?
• What types of NQTLs are included on the Departments’ priority list?

Highlights of the FAQs are provided below.  The Departments also left open the possibility that additional guidance may be provided at a later date, once the Departments have taken more time to “engage with stakeholders to determine what additional guidance might be needed.”

What information should be included in a group health plan’s comparative analyses?

A group health plan’s comparative analysis with respect to each NQTL must contain a detailed, written, and reasoned explanation of the specific plan terms and practices.  The comparative analysis also must include the bases for the group health plan’s conclusion that the NQTL complies with the MHPAEA.

The FAQs also provide a detailed list of information that, at a minimum, must be included in the comparative analysis for each NQTL.  The Departments note that the list of minimum required content “closely aligns” with guidance that the DOL has previously provided in the form of the Self-Compliance Tool for the MHPAEA and indicate that group health plans that have carefully used the Self-Compliance Tool will be in a strong starting position for compliance with the comparative analysis requirement.

What are some examples of insufficient responses to a request from the Departments?

A group health plan should not respond to a request from the Departments with general statements of compliance that include conclusory references to the MHPAEA legal standard, but lack supporting evidence and detailed explanations.  Other examples (drawn from the Departments’ observations in past MHPAEA investigations) generally caution group health plans against providing information without clearly explaining its relevance to the comparative analyses.  For example, a group health plan should avoid:

• Providing a large volume of documents, but omitting a clear explanation of how and why each document is relevant to the comparative analyses.
• Identifying processes, strategies, sources, and factors, but omitting a clear and detailed comparative analysis.
• Identifying factors, evidentiary standards, and strategies, but omitting a clear explanation of how they were defined and applied in practice.

What other documents might the Departments request in support of a group health plan’s comparative analyses?

Group health plans should be prepared to provide documents that support the analysis and conclusions of the comparative analyses, such as:

• Records documenting NQTL processes and detailing how the NQTLs are being applied to both medical/surgical and MH/SUD benefits.
• Guidelines or other standards the group health plan relied on to determine that NQTLs apply no more stringently to MH/SUD benefits than to medical/surgical benefits.
• Samples of covered and denied MH/SUD and medical/surgical benefit claims.
• Documents related to MHPAEA compliance by the group health plan’s service providers.

What happens if a group health plan’s comparative analyses are determined by the Departments to be insufficient?

If the Departments review a group health plan’s comparative analyses and determine that the group health plan is not in compliance with the MHPAEA, the group health plan will be required to specify the actions it will take to bring the plan into compliance.  The group health plan will then have 45 days to submit to the Departments revised comparative analyses demonstrating compliance.  If, after the 45-day correction period, the Departments make a final determination of non-compliance, then the plan or issuer must notify all individuals enrolled in the plan or coverage that the plan or coverage has been determined to be non-compliant with the MHPAEA within seven days of the final determination.

The Departments also will share final determinations of noncompliance with State regulatory agencies where the group health plan located (for an insurer, the State where the insurer is licensed to do business).

Who else can request a group health plan’s comparative analyses?

Participants, beneficiaries, enrollees in ERISA-governed plans (or an authorized representative), and/or state regulators can request a copy of the comparative analyses.

What types of NQTLs are included on the Departments’ priority list?

The FAQs identify several “priority” issues on which the Departments may focus their initial enforcement efforts when requesting comparative analyses:

• Potential MHPAEA violations or complaints that have been brought to the Departments’ attention with respect to a particular group health plan.
• Prior authorization requirements for in-network and out-of-network inpatient services.
• Concurrent review for in-network and out-of-network inpatient and outpatient services.
• Standards for provider admission to participate in a network, including reimbursement rates.
• Out-of-network reimbursement rates (plan methods for determining usual, customary, and reasonable charges).

This blog provides a general description of the new requirements imposed by the Consolidated Appropriations Act, 2021 with respect to the MHPAEA as discussed in the FAQs.

[1] Generally, MHPAEA requires that treatment limitations (such as visit limits) and financial requirements (such as coinsurance and copays) imposed on MH/SUD benefits cannot be more restrictive than those imposed on medical/surgical benefits.  With respect to NQTLs, the MHPAEA regulations prohibit a group health plan from imposing NQTLs on MH/SUD benefits unless the processes and standards used in applying a NQTL to MH/SUD benefits are comparable to, and are applied no more stringently than, the processes and standards used when applying the NQTL to medical/surgical benefits.