The Biden administration is looking to force health insurers to come into compliance with a 2008 law that attempted to create coverage parity between mental and physical healthcare, as health plan roadblocks continue to curtail access to mental health services. The HHS and Treasury and Labor departments announced a new proposed rule that would require health insurers to analyze patient outcomes to ensure their benefits are administered equally, including evaluating provider networks and payments to out-of-network providers. The rule would also forbid plans from using more restrictive medical management techniques like prior authorization or narrower networks for mental health and substance use providers than those for other medical providers. Noncompliant plans would have to take remedial action, such as adding more therapists to their networks if patients seek out-of-network care too often.
More on Proposed Rule
The proposed regulations focus primarily on the design and administration of non-quantitative treatment limitations (NQTL). NQTLs are benefit limitations that are not expressed numerically. For example, a pre-authorization requirement is an NQTL, where a copay requirement is a quantitative treatment limitation. The MHPAEA requires plans to prepare “comparative analyses” to demonstrate that NQTLs are applied to mental health and substance use benefits on the same terms as major medical benefits.
In their most-recent report to Congress, the Departments explained that most of the analyses provided by group health plans on audit have not met their standards: “Comparative analyses submitted by plans and issuers should give EBSA a sound basis for determining whether plans and issuers are complying with MHPAEA’s NQTL provisions. In actual practice, however, the comparative analyses that plans and issuers are performing and providing to the Secretary for review commonly fall far short of MHPAEA’s requirements.”
Consistent with these findings, the Departments propose a new and more robust set of guidelines for the NQTL comparative analyses. For example, the proposed regulations would require plans to analyze outcomes data to determine whether the NQTLs for mental health and substance use disorder benefits are administered on the same terms as medical and surgical benefits.
The Departments also expressed concern that “there is a significant disparity between how often participants and beneficiaries have little or no choice under their plan or coverage but to utilize out-of-network mental health and substance use disorder providers and facilities, as compared to medical/surgical providers and facilities.” Accordingly, the proposed regulations address how to consider network adequacy when analyzing the impact of a NQTL on mental health and substance use disorder benefits.
Technical Release
Concurrent with the proposed regulations, the Departments also issued a Technical Release requesting comments from the public on the type of data and information plans should include in their existing NQTL analysis to the Departments and state regulators to determine whether plan participants have access to an appropriate number of MH/SUD providers in the plans’ or issuers’ network. The release also discusses potential enforcement safe harbors, which would provide sufficient evidence to demonstrate to the Departments that participants, beneficiaries, and enrollees have comparable access. Other commentators have touched on the potential for a safe harbor that would afford an easier path to compliance. What this looks like is unclear at the moment but could include existing frameworks such as accreditation.
However this is structured, the Technical Release notes, “the Departments expect that these standards would set a high bar to ensure that enforcement relief is provided only to plans or issuers that clearly demonstrate, through the data provided as part of their comparative analysis, that participants, beneficiaries, and enrollees have equal access to in-network MH/SUD benefits as compared to in-network M/S benefits such that there is strong indication that a plan’s or coverage’s NQTLs related to network composition comply with MHPAEA.”
Industry Reaction
AHIP pointed out the challenges related to physician shortages. The organization said in a release: “Access to mental health has been, and continues to be, challenging primarily because of a shortage and lack of clinicians, which is why for years, health insurance providers have implemented programs and strategies to expand networks and increase access.” In contrast to some stakeholders, AHIP argues the federal laws are working. “The significant increase in use of mental health care since passage of the federal parity law provides strong evidence that MHPAEA is working and providing patients with access to the quality, affordable health care they need,” they further stated in their statement.
URAC, an organization that created a parity-related accreditation, supports the proposed rule. “URAC strongly supports the Biden-Harris Administration’s efforts to eliminate discrimination against patients with mental health and/or substance use disorders. The Administration’s announcement of the proposed rule to refine, clarify, and expand the regulations implementing the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) is a major milestone in these efforts and URAC applauds the intensive efforts of the Departments of Labor, Treasury and Health and Human Services.” The organization additionally announced its intention to convene a multi-stakeholder conference in response to the proposed rule.
Similarly, the Kennedy Forum supported the proposed rule. In a statement, the organization said: “The proposed rules would put much-needed teeth into the Federal Parity Act regulations, which are critical to saving lives amidst our nation’s ongoing mental health and substance use crisis. Specifically, the proposal would require plans to act when there are disparities in consumers’ ability to access care, require data reporting to evaluate plans’ compliance, and would create new rules regarding ‘network composition’ to address whether individuals can access care within plan networks. “