On April 2, 2021, the Departments of Labor (DOL), Health and Human Services (HHS) and Treasury (collectively the “Departments”) jointly released nine (9) questions and answers (“FAQs Part 45”) related to recent changes made to the Mental Health Parity and Addiction Equity Act (“MHPAEA”) by the Consolidated Appropriations Act of 2021 (the “Appropriations Act”).

FAQs Part 45 answers questions raised by Health Plans and Issuers (collectively “Health Plans”) concerning the timing of parity comparative analyses disclosures, as well as the information that must be captured in these comparative analyses, and disclosed to the Departments upon request. While Health Plans have conducted parity comparative analyses for years as a best practice, the Appropriations Act codifies this best practice into law. As of February 10, 2021, Health Plans must be prepared to make these analyses available to the Departments, or the appropriate State authority, within 45 days of a request. Furthermore, Health Plan participants, beneficiaries, or their authorized representatives may also request these documents free of charge.

The Departments make clear that a statement of compliance, or cursory analysis, will not do.

Rather, Health Plans must disclose comparative analyses between Mental Health/Substance Use Disorder (“MH/SUD”) and Medical/Surgical (“M/S”) benefits that contain a “robust discussion” over the following areas:

1. Identification of the specific Non-Quantative Treatment Limitation (“NQTL”), Health Plan terms, and policies at issue.
2. The specific MH/SUD and M/S benefits affected by the NQTL.
3. The factors, evidentiary standards or sources, strategies or processes considered in the design or application of the NQTL, and in determining which benefits are subject to that NQTL. The analyses should include an explanation of the weighting of the factors applied and an evaluation of any specific data used when the Health Plan determines the use of a NQTL.
4. The precise definitions used, and the supporting sources for, any defined factors, evidentiary standards, strategies, or processes used by the Health Plan.
5. An explanation of variations in the application of a guideline or standard by the Health Plan, and the processes and factors used by the Health Plan for establishing variations in the use of that guideline or standard between MH/SUD and M/S benefits.
6. For specific decisions involving the administration of the benefits, the Health Plan should identify the nature of those decisions, any decision maker(s), the timing of the decisions, and the qualifications of those decision maker(s).
7. For analyses that relies on experts, the Health Plan should include an assessment of each expert’s qualifications and the extent to which the Health Plan relied on that expert’s recommendations.
8. A reasoned discussion, with citations, by the Health Plan, of its findings and conclusions regarding the comparability of the processes, strategies, evidentiary standards, factors, and sources as to whether plan coverage is or is not in compliance with MHPAEA.
9. The date of the analyses and the name, title, and position of the person or persons who performed or participated in the comparative analyses.

FAQs Part 45 also provides detail regarding specific practices and procedures that Health Plans should avoid when responding to the Departments, as well as highlights supplemental information and records that Health Plans should have available for review. FAQs Part 45 can be found at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-45.pdf.

Health Plans should review their parity comparative analyses to ensure that they contain sufficient information to satisfy the Departments’ expectations. Additionally, Health Plans should work with closely with their third-party administrators, and other vendors, to be sure that parity compliance meets both the “as written” and “as applied” standards.

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