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THE ADMINISTRATION ISSUES IMPORTANT NEW GUIDANCE REGARDING THE CONSOLIDATED APPROPRIATIONS ACT AMENDMENTS TO THE MENTAL HEALTH PARITY AND ADDICTION EQUITY ACT OF 2008

On April 2, 2021, the Departments of Labor, Treasury and Health and Human Services (the “Departments”) jointly issued FAQs containing important guidance regarding the amendments to the Mental Health Parity and Addiction Equity Act of 2008 (the “MHPAEA”) made by the Consolidated Appropriations Act, 2021 (“CAA”), which became effective February 10, 2021.  The amendments require group health plans and health insurance issuers to be more transparent with respect to their efforts to comply with the MHPAEA. 

Under the MHPAEA, if a group health plan or health insurance issuer includes both medical/surgical benefits and mental health/substance use disorder (“MH/SUD”) benefits, then the financial limitations (such as coinsurance and copays) and the treatment limitations (such as visit limits) that apply to MH/SUD benefits must be no more restrictive than the predominant financial requirements or treatment limitations that apply to substantially all medical/surgical benefits within a given classification. The six classifications of benefits defined in the MHPAEA final regulations are (i) inpatient, in-network; (ii) inpatient, out-of-network; (iii) outpatient, in-network; (iv) outpatient, out-of-network; (v) emergency care; and (vi) prescription drugs.  The  MHPAEA final regulations also distinguish between quantitative treatment limitations and nonquantitative treatment limitations, or “NQTLs”.

The CAA amended the MHPAEA by requiring group health plans and health insurance issuers that offer both medical/surgical and MH/SUD benefits to perform and document their comparative analyses of the design and application of NQTLs, and to report their findings to state and local agencies upon request.  These comparative analyses must demonstrate that any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits in a given classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation to medical/surgical benefits in the same classification. 

ERISA plans must make available to participants, beneficiaries, enrollees and their authorized representatives comparative analyses and other information required by the CAA. With respect to non-grandfathered group health plans and non-grandfathered group or individual health insurance coverage, claimants have a right upon appeal of an adverse benefit determination (or a final internal adverse benefit determination) to copies of all documents and other information relevant to the claimant’s claim for benefits.  This right includes access to documents with information on medical necessity criteria for both medical/surgical benefits and MH/SUD benefits, as well as documents reflecting the processes, strategies, evidentiary standards, and other factors used to apply an NQTL with respect to medical/surgical benefits and MH/SUD benefits under the plan, including any analyses performed by the plan or issuer as to how the NQTL complies with MHPAEA.

The FAQs answer such important questions as:

  • When must plans and issuers make available their NQTL comparative analyses, as required by the Appropriations Act?

Response: Plans and issuers should now be prepared to make their comparative analyses available on request.

  • What information must plans and issuers make available in response to the Departments’ requests for documentation of their comparative analyses?

Response:  The information must ensure that comparative analyses are “sufficiently specific, detailed, and reasoned” to ensure that an NQTL is comparable and applied no more stringently to MH/SUD benefits than to medical surgical benefits.

  • In addition to documentation of the comparative analyses, what types of documents should plans and issuers be prepared to make available to the Departments to support the analysis and conclusion reached in their comparative analysis of NQTLs?

Response:  The FAQs, which are linked to this article, provide a list of the types of documents that plans and issuers should be prepared to make available.

The FAQs issued by the Departments can be viewed here.