On Sept. 9, 2024, the U.S. Departments of Health and Human Services (HHS), Labor (DOL), and the Treasury (IRS) (collectively, the Departments) released new final rules implementing the Mental Health Parity and Addiction Equity Act (MHPAEA). The final rule updates the way the Departments determine whether health plans treat mental health and substance use disorder (MH/SUD) benefits differently than medical and surgical (M/S) benefits. In short, it specifies how health plans must analyze nonquantitative treatment limitations (NQTLs) for both types of benefits and requires plans to remedy any disparity. The rules significantly impact employers and their responsibilities relating to group health plans.
The primary area of focus in the final regulations is the comparative analyses requirement for group health plans’ nonquantitative treatment limitations.
NQTLs are the requirements in a group health plan other than financial requirements or treatment limits that impact access to MH/SUDs. They include medical management and medical necessity standards, provider admission to network guidelines and methods for determining usual, customary, and reasonable charges for MH/SUDs.
Employer Action Items
- Work with your employee benefits advisors to ensure that your group health plans are in compliance with the existing requirements under the MHPAEA, paying particular attention to NQTLs. The DOL provides a useful list of warning signs for common noncompliance items relating to a group health plan’s NQTLs.
- Confirm that your group health plans have robust comparative analyses meeting the current guidelines. The Departments’ MHPAEA FAQs under existing regulations clarify that a general statement of compliance with the MHPAEA for NQTLs, coupled with a conclusory reference to broadly stated processes, strategies, evidentiary standards, or other factors is insufficient to meet the CAA requirement. Many employer comparative analyses have been rejected as insufficient.
- Confirm that your services agreement with the ASO or TPA for self-insured plans requires preparation of the comparative analysis or, at a minimum, an agreement for cooperation in the preparation of the comparative analysis. The TPA or ASO is not directly responsible under the law for the comparative analysis (the employer or sponsor is), so if this is not a service provided, be sure to find a third-party vendor. Fully insured plans will generally be able to rely on the issuer.
- Gather supporting documents with your ASO or TPA for the analysis and conclusions of the NQTL comparative analysis, including any documents and other information relevant to the factors used to determine the application of an NQTL and the evidentiary standards used to define the factors identified.
- Be educated about the MHPAEA and your group health plan’s responsibilities. The DOL offers an MHPAEA Self-Compliance Tool to assist employers with compliance in this area, including a section on NQTLs that outlines a process for conducting the comparative analysis.