Mental Health Parity and Addiction Equity Act Guidance

On July 25, 2023, the Departments of the Treasury, Labor, and HHS (collectively, the Departments) released a proposed rule intended to strengthen enforcement of the 2008 Mental Health Parity and Addiction Equity Act (MHPAEA) and improve patients’ ability to access care for mental health and substance use disorders (MH/SUD). The Departments also provided a Technical Release (that requests public feedback on proposed new data requirements for limitations related to the composition of a health plan’s or issuer’s network), and the 2023 MHPAEA Report to Congress (as required by federal law).

The proposed rule aims to clarify the requirement for group health plans and health insurance issuers for how to comply with new MHPAEA requirements to perform and document comparative analyses of the design and application of non-quantitative treatment limitations (NQTLs) in order to assess the impact of an NQTL on access to mental health and substance use disorder benefits as compared to medical or surgical benefits. In addition, the proposed rule would amend existing NQTL standards to prevent plans and issuers from using them to place greater limits on access to mental health or substance use disorder benefits.

The proposed rule set forth a number of standards that are intended to reinforce the proper application of the statutory and regulatory requirements; promote compliance with the NQTL comparative analysis requirements; explain how the various components of the regulation work together; and ensure that the purpose of MHPAEA, to remove greater barriers to access to mental health and substance use disorder benefits. This update provides a summary of the key provision of the proposed rule.  

New Proposed Rule

Some of the key provisions in the Proposed Rule include:

• Make clear that MHPAEA requires that individuals can access their mental health and substance use disorder benefits in parity with medical/surgical benefits.
• Provide specific examples that make clear that plans and issuers cannot use more restrictive prior authorization and other medical management techniques for mental health and substance use disorder benefits; standards related to network composition for mental health and substance use disorder benefits; and factors to determine out-of-network reimbursement rates for mental health and substance use disorder providers.
• Require plans and issuers to collect and evaluate outcomes data and take action to address material differences in access to mental health and substance use disorder benefits as compared to medical/surgical benefits, with a specific focus on ensuring that there are not any material differences in access as a result of the application of their network composition standards.
• Require plans to demonstrate, with a corrective action plan, that they have made necessary changes to ensure compliance with MHPAEA if the analyses show they’re failing to meet the parity law’s requirements and to document those actions in their comparative analyses.
• Codify the requirement that plans and issuers conduct meaningful comparative analyses to measure the impact of NQTLs. This includes evaluating standards related to network composition, out-of-network reimbursement rates, and prior authorization NQTLs.
• Implement the sunset provision for self-funded, non-Federal governmental plan elections to opt out of compliance with MHPAEA, adopted in the CAA, 2023.

The Departments’ proposal was published in the Federal Registrar as of August 3, 2023, and the period for public comments expire October 17, 2023. We are closely monitoring developments of the proposed rules and will provide updates to our state clients when available.