- The report makes clear that the departments expect health plans to have a well-documented comparative analysis of NQTLs in place prior to any request that the departments make for the information.
- The report identifies various NQTLs that the departments have examined and issues that they have discovered in their examinations.
- The report details measures that the departments have taken to strengthen enforcement of MHPAEA requirements and requests Congress to enact legislation that can further enhance their enforcement efforts.
The Bottom Line
The Departments of the Treasury, Labor, and Health and Human Services jointly issued a report to Congress, fulfilling two obligations with regard to the Mental Health Parity and Addiction Equity Act (MHPAEA).
First, the report meets the departments’ responsibility to report every two years on compliance with the MHPAEA. Second, the report meets the new requirement for the departments to report every year on the nonquantitative treatment limitation (NQTL) comparative analysis under the Consolidated Appropriations Act, 2021 (CAA).
This is the first report under the CAA requirement and offers valuable insight into the departments’ approach to enforcing the requirement to maintain a documented analysis comparing NQTLs (like prior authorization procedures, prescription drug formulary decisions, and network participation) on benefits for mental health and substance use disorders to those on benefits for medical and surgical expenses. For example, the report makes it clear that the departments expect health plans to:
- Have a well-documented comparative analysis of NQTL in place prior to any request that the departments make for the information. Any request for an extension will need to be justified. The Department of Labor reported that none of the initial analyses it received in response to its 2021 requests initially contained sufficient information.
- Address all applicable NQTL in a manner that connects them to specific benefits. The report identifies NQTLs that the Departments of Labor and Health and Human Services examined and that raised particular concerns. The most frequent insufficiencies related to limitations on (or the exclusion of) applied behavioral analysis for autism spectrum disorders, restrictive billing requirements, limitations on medication-assisted treatment for opioid addiction, application of prior authorization requirements, and limitations on nutritional counseling for eating disorders.
- Present the evidence considered in the design and operation of an NQTL in a manner that makes it relevant to the NQTL. General statements and documents that do not relate specifically to the purpose of the NQTL or to how an NQTL for mental health and substance use disorders compares to the NQTL for medical and surgical benefits are not adequate.
- Provide an analysis that addresses NQTLs with comprehensive depth. If the report refers to other factors, it must specifically identify and address those other factors.
The new report to Congress details measures that the departments have taken to strengthen enforcement of MHPAEA requirements. It makes a request for legislation that can further enhance its enforcement efforts, including the ability to impose civil monetary penalties for MHPAEA violations and expanded authority to pursue not only plans, but insurers and third party administrators.
The need for meticulous documentation of the NQTL comparative analysis places sponsors of self-funded plans in a particularly difficult position. Unlike insured plan sponsors, they will not generally be able to contract with their vendors to conduct and document the analysis, but they will need their vendor’s cooperation. The vendors may have information about the development and implementation of NQTLs, which will be useful in documenting the basis for the NQTL.
Whether or not the vendor or plan sponsor conducted a detailed analysis of the NQTL before it was ever implemented (as the departments believe should have occurred), plan sponsors should evaluate the limitations now, in view of current factors affecting plan benefits. They likely will need vendor support with regard to the design of the NQTLs. They certainly will need plan vendors to provide relevant administrative rules, claims data, information about prescription drug formularies, network reimbursement rates and selection criteria, and other information relevant to the operation of NQTLs. It may be necessary to coordinate data among different vendors, particularly if the administration of mental health and substance use disorder benefits have been carved out from the administration of other benefits.
Given the care with which plan sponsors need to support limitations on mental health and substance use disorders, plan sponsors also should be prepared to make appropriate changes in plan design and administration based on their findings.
The requirement to maintain and produce a thoroughly documented NQTL comparative analysis is the MHPAEA requirement that is currently receiving the most attention. But plans need to keep in mind other MHPAEA requirements, including its quantitative tests for limits on plan benefits that are more easily measured, such as deductibles, copays, coinsurance, length of stay, and number of visits.
Lawyers at Ballard Spahr are working with the new rules and are prepared to assist you with questions that you may have. The firm recently produced a series on the CAA and transparency regulations. Highlighted briefings may be found here, here, here, and here.
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