Recently, the Departments of Labor, Health and Human Services, and the Treasury announced proposed changes to the Mental Health Parity and Addiction Equity Act (MHPAEA). Originally enacted in 2008, the MHPAEA helps to ensure that patients seeking care for mental health and substance use disorders do not face any greater barriers to treatment than those that are faced by patients seeking treatment for physical and/or surgical conditions. This includes prohibitions on insurance companies from imposing copayments, prior authorization, and other requirements on mental health and substance use disorder benefits that are more restrictive than those that are imposed on medical and surgical benefits.
However, the agencies note that despite these restrictions, those who seek coverage for mental health and substance use disorder care do still face greater barriers when seeking treatment under those categories, when compared to seeking medical or surgical benefits.
The proposed rules clarify the new MHPAEA requirements to perform and document comparative analyses of the design and application of non-quantitative treatment limitations (NQTLs) to assess the impact of the NQTLs on access to mental health and substance use disorder benefits, as compared to medical or surgical benefits. The proposed rules would also amend existing NQTL standards to prevent plans and issuers from using them to impede access to mental health or substance use disorder treatment benefits.
The proposed rules further set forth the content requirements for NQTL comparative analyses and specify how plans and issuers must make these comparative analyses available to the Department of the Treasury (Treasury), the Department of Labor (DOL), and the Department of Health and Human Services (HHS) (collectively referred to as “the Departments”), as well as to any applicable State authority, participants, beneficiaries, and enrollees.
The proposed rules would require plans and issuers to collect and evaluate relevant data in a manner reasonably designed to assess the impact of NQTLs on access to mental health and substance use disorder benefits and medical/surgical benefits and also sets forth a special rule with regard to network composition. The proposed rules would require plans and issuers to collect and evaluate relevant data in a manner reasonably designed to assess the impact of NQTLs on access to mental health and substance use disorder benefits and medical/surgical benefits, and would set forth a special rule with regard to network composition.
The proposal requires plans and issuers to consider whether an NQTL is inhibiting access to treatment for mental health conditions and substance use disorders by examining whether the NQTL that applies to mental health or substance use disorder benefits is more restrictive than the predominant NQTL that applies to substantially all medical/surgical benefits within a classification of benefits set forth under the regulations. The plan or issuer will also need to consider whether the processes, strategies, evidentiary standards, or other factors that it uses to design or apply an NQTL to mental health or substance use disorder benefits in a classification are comparable to, and applied no more stringently than, those used in designing and applying the NQTL to medical/surgical benefits in the same classification.
Under the proposal, if a plan does not satisfy any of the new NQTL classification requirements, the NQTL would violate MHPAEA and could not be imposed on mental health or substance use disorder benefits in the classification. If plans or issuers fail to comply with the requirements, it would have to make changes to the terms of the plan or coverage, or changes to the way the NQTL is designed or applied to ensure compliance with the MHPAEA.
If enacted as proposed, the majority of the proposed changes would apply on the first day of the first plan year beginning on or after January 1, 2025. The proposed HHS regulations that extend MHPAEA requirements to health insurance issuers that offer individual health insurance coverage would apply January 1, 2026, while the provision that previously allowed plans to opt out of MHPAEA would sunset (retroactively) on December 29, 2022.
“HHS believes all Americans should have access to mental health and substance use disorder treatment, whenever and however they need it,” said HHS Secretary Xavier Becerra. “In support of the President’s Unity Agenda, we continue to take actions to address the nation’s mental health crisis. We are ensuring that mental health is treated no differently than physical health and people in need of services have equitable access to care.”
If we are serious about solving the opioid crisis, access to mental health treatment is absolutely necessary. We believe these proposed rules go along way to greatly expand access to behavioral health to millions of American’s who are currently locked out of the system due to restrictions from insurance coverage.
To review the entire proposed rule and submit comments see the Federal Register here. Comments must be submitted by October 2, 2023.